Rajes Kumar, J. - (1.) These five revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as 'Act') are directed against the order of Tribunal dated 14.6.1996 relating to assessment years 1985-86, 1986-87, 1987-88, 1988-89 and 1989-90 respectively.
(2.) The brief facts of the case are that the dealer opp. party was a handling agent of various customers who intended to purchase coal from coaleries. Dealer opp. party acted as a Commission Agent for importing coal for Small Scale Industries. The Small Scale Industries get yearly quota! of steam coal by the Director of Industries U. P. Kanpur for preferential movement of coal by Railway. The Director of Industry authorised the assessee Firm for arrangement of movement of coal and loading supervision for the same. The opp. party had arranged consent of loading from Coal India Ltd. against financial coverage in the shape of Bank guarantee and submitted programs with the Railway for allotment. As soon as the allotment was made and Wagons were supplied, assessee Firm supervised the loading. On the presentation of the bill of the coal Wagons by Coal India Ltd., assessee Firm made payment to Coal India Ltd. on behalf of the consumers for which assessee Firm received i commission charges under the settled terms and conditions. Bills were raised by the Coal India Ltd. in favour of consumers and for import of goods, Form 31 was also used by the consumers and the the delivery of coal was also directly taken by the consumers. Assessing Authority treated the opp. party as a dealer defined under Section 2[c] of the act which also includes handling agent and levied tax on the estimated turnover of coal. First Appeals filed by the opp. party were rejected. Opp. party filed Second Appeals before the Tribunal which were allowed by the impugned order.
(3.) Heard Learned Standing Counsel. No one appears on behalf of opp. party. I have perused the order of Tribunal and the authorities below. Section 2-[C] which defines dealer reads as follows: "Dealer" means any person who carries on in Uttar Pradesh (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods directly or indirectly, for cash or deferred payment or for commission, remuneration or other valuable consideration and includes-" (i) a local authority, body corporate company, any co-operative society or other society, club, firm, Hindu undivided family or other association of persons which carries on such business; (ii) a factor, broker, arhati, commission agent, del credere agent, or any other mercantile agent, by whatever name called and whether of the same description as hereinbefore mentioned or not, who carries on the business or bying, selling, supplying or distributing goods belonging to anyu principal, whether disclosed or not; (iii) an auctioneer who carries on the business of selling or auctioning goods belonging to any principal, whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or nominee of the principal; (iv) a Government which, whether in the course of business or otherwise buys, sells supplies or distributes goods, directly or otherwise for cash or for deferred payment or for commission, remuneration or other valuable consideration; (v) every person who acts within the State, as an agent of a dealer residing outside the State and buys, sells, supplies or distributes goods in the State or acts on behalf of such dealer as( a) a mercantile agent as defined in the Sale of Goods Act, 1930; or (b) an agent for handling of goods or documents of title relating to goods; or (c) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or such payment; (vi) a firm or a company or other body corporate, the principal office or headquarters where of is outside the State having a branch or office in the State, in respect of purchases or sales, supplies or distribution of goods through such branch or office; (vii) every person who carries on the business of transfer of property in goods ) whether as goods or in some other form) involved in the execution of a works contract; (viii) every person who carries on business of transfer of the right to use any goods for any purpose (whether or nor for a specified period) for cash, deferred payment or , oilier valuable consideration; Provided that a person who sells agricultural or horticultural produce grown by himself or grown on any land in which he has an interest, whether as an owner, usufructuary mortgagee, tenant, or otherwise, or who sells poultry or dairy products from fowls or animals kept by him shall not, in respect of such goods be treated as a dealer;] Dealer means any person who carries on in Uttar Pradesh of business of buying selling, supplying or distributing goods directly or indirectly for cash or deferred payment or for commission remuneration or other valuable consideration and includes an agent for handing the goods or documents for title relating to the goods, an agent for collection or payment of sale price of goods or as a guarantor for such collection or such payment. "Business has been defined by Section 2(aa) 'Sale' has been defined by Section 2-(h) and 'Turnover' has been defined by Section 2(i) which reads follows:- Section 2 (aa) Business in relation to business of buying or selling goods includes (i) any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make profit and whether or not any profit accrues from such trade, commerce, manufacture adventure or concern, (ii) the execution of any works contract on the transfer of the right to use any goods for any purpose (whether or not for a specified period); and (iii) any transaction of buying, selling or supplying plant machinery raw materials, processing materials, packing materials, empties, consumable stores, waste or by products, or any other goods of similar nature of any unserviceable or obsolete, or discarded machinery or any parts or accessories thereof or any waste or scrap or any of them or any other transaction whatsoever which is ancillary to or is connected with or is incidental to or results from such trade, commerce, manufacture, adventure or concern of works contract or lease); but does not include any activity in the nature or mere service of profession which does not involve the purchase or sale of goods); Section 2(h)- Sale, with its grammatical variations and cognate expressions means any transfer of property in : goods (otherwise than by way of a mortgage, hypothecation, charge of pledge) for cash or deferred payment or other valuable consideration, and include (i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other Valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) the delivery of goads on hire purchase or any system of payment by instalments; (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; and (vi) the supply by way of or as part of arty service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash or deferred payment or other valuable consideration; Explanation-I-A sale of purchase shall be deemed to have taken place in the State (i) in a case failing under Sub-clause (ii) if the goods are in the State at the time of transfer of property in such goods (whether as goods or in some other form involved in for the execution of the works contract, notwithstanding that the agreement for the works contract has been wholly or in part entered into outside the State; (ii) in a case falling under Sub-clause (iv), if the goods are used by the lessee within the State during any period, notwithstanding that the agreement for the (ease has been entered into outside the State or that the goods have been delivered to lessee outside the State; (a) when the goods are transferred from a principal to his selling agent and from the selling agent to his purchaser, (b) when the goods are transferred from the seller to a buying agent and from the buying agent to his principal, if the agent is found, in either of the casks aforesaid( i) to have sold the goods at one rate and passed on the sale proceeds to his principal at another rate; or (ii) to have purchased the goods at one rate and passed them on to his principal at another rate; or (iii) not to have accounted this principal for the entire collection or deduction made by him, in the sales or purchases effected by him on behalf of his principal; or (iv) to have acted for a fictitious or is or non existent principal;] Section 2(i) 'Turnover' means the aggregate amount for which goods are supplied or distributed by way of sale or [are sold" [***] by a dealer, either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration; Explanation-I (omitted) Explanation-II- Subject to such conditions and restrictions, if any, as may be prescribed in this behalf (i) the amount for which goods are sold or purchases shall include the price of the packing material in which they are packed and any sums charged for anything done by the dealer in respect of the goods sold, at the time of or before the delivery thereof, other than cost of freight or delivery or cost of installation or the amount realised as (trade tax on sale or purchase of goods), when such cost amount is separately charged; (ii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover; and (iii) where for accommodating a particular customer, a dealer obtains goods from another dealer and immediately disposes of the same without profit to the customer, the sales in respect of such goods shall be included in the turnover of the latter dealer alone (iv) [Turnover of purchases with its cognate expressions] means the aggregate of the amounts of purchase price paid or payable by a dealer in respect of purchases of goods made by or through him after deducting the amount, if any refunded to the dealer by the seller in respect of any goods returned to such seller within such period as maybe prescribed]; ;