PATHAK, J. - (1.) IN this and the connected references the Judge (Revisions) Sales Tax has referred the following question for the opinion of this court : "Whether on the facts and circumstances of the case discussed in my judgment dated 28th February, 1970, the cost of railway freight could be excluded from the turnover and could not be held liable to sales tax under the Central Sales Tax Act ?"
(2.) THE assessee is a dealer in timber. He was assessed under the Sales Tax Act for the assessment years 1960-61 to 1964-65. For the assessment years 1960-61 and 1961-62, the assessing authority rejected the account version disclosed by the assessee and assessed him on an enhanced turnover. On appeal, the appellate authority maintained the rejection of the account version, but reduced the amount of assessed turnover. For the assessment years 1962-63, 1963-64 and 1964-65 also the Sales Tax Officer rejected the account version and enhanced the turnover. But on appeal the appellate authority accepted the book version. The Commissioner of Sales Tax applied in revision to the revising authority raising the contention that in all the five cases the appellate authority had erred in excluding the cost of freight from the turnover of the assessee. The Judge (Revisions) Sales Tax upheld the plea, and referring to the definition of "sale price" in section 2(h) of the Central Sales Tax Act he came to the conclusion that the freight should not have been excluded from the turnover of sales. A dealer is liable to pay sales tax calculated by reference to his turnover, and section 2(j) of the Central Sales Tax Act defines "turnover" as "the aggregate of the sale prices received and receivable" by the dealer in respect of the sale of any goods in the course of inter-State trade and commerce. Section 2(h) defines "'sale price" as : "the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount, according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof, other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged."
(3.) THE expression "sale price" therefore refers to the amount payable as consideration for the sale of goods and it will not include cost of freight where such cost is separately charged. The Judge (Revisions) has found that the bills issued by the assessee in the present case were drawn up in the same terms as the bills which were considered by the Supreme Court in Tungabhadra Industries Ltd. v. Commercial Tax Officer ([1960] 11 S.T.C. 827 (S.C.)). In that case, the Supreme Court held that having regard to the terms in which the bills were drawn up the freight charged could not be excluded. It was observed that under rule 5(1)(g) of the Turnover and Assessment Rules the dealer was entitled, in the determination of his net turnover, to the deduction from his gross turnover of "all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold : (i) freight ................" ;