Rajes Kumar, J. - (1.) The present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as Act), is directed against the order of Tribunal date 27.5.1995 relating to the assessment years 1990-91. The following question has been raised in the present revision: Whether in the light of the finding of Hon'ble Supreme Court reported in (AIR, 1993, Supreme Court page 123), the Trade Tax Tribunal was legally justified in holding that inward freight is not the part of taxable turnover?
(2.) Dealer/opposite party (hereinafter referred to as "dealer") was carrying on the business of Coal and was registered under the U.P. Trade Tax Act as well as under the Central Sales Tax Act. In the year under consideration, applicant had imported coal against its Form 31 and supplied Coal to various parties alleged mainly to Brick Kiln owner. Dealer paid freight charges and also incurred other expenses on the goods till the arrival of the goods at its destination, but the said freight was charged in the bill separately from its customers. It is alleged that the dealer was holding license from District Supply Officer and the coals were supplied to the Brick Kiln owner only on the basis of their orders. It was claimed that the freight charges, which was incurred for bringing the coal at the destination of the dealer, is not liable to be included in the turnover. Assessing Authority had not accepted the plea of the dealer on the ground that the dealer had purchased coal from coallery and imported the said coal against its own Form 31 and thereafter sold the said coal to the Brick Kiln owner and therefore, amount of freight incurred for bringing the coal from coallery to its destination, was part of the costs of coal and even if separately charged in the Invoices, it would be a part of the turnover. First Appeal filed by the dealer was rejected. Dealer filed Second Appeal before the Tribunal which was allowed and the claim of the dealer has been accepted. Tribunal held that the dealer was holding a B-license No. 623 issued by the District Supply Officer and apart from the value of coal, freight charges, labour charges, Dharamkata and Rs. 2/- per qtl. commission were charged separately. Tribunal also held that since the dealer was B-licensee and charged 2% commission freight would not be part of the turnover.
(3.) Heard learned Standing Counsel Inspite of service of notice, no one appears on behalf of the opp. party. Learned Standing Counsel submitted that the Tribunal has erred in holding that the amount of freight incurred for bringing the coal from coalery to the destination of dealer, is not part of turnover. He submitted that the dealer was registered under the U.P. Trade Tax Act as well as under the Central Sales Tax Act and purchased coal from coalery in its own account and imported such coal inside the State of U.P. at its destination against its own Form 31 and sold the coal for price to the various parties. He submitted that the manner of preparing the bill is wholly irrelevant and in substance, dealer had sold the coal on principal-to-principal basis to the various customers and there was no agreement of any agency between the dealer and purchaser. He further submitted that merely because, dealer was B-licensee under the Coal Control Orders issued by the District Supply Officer, it can not be said that the dealer acted as an Agent on behalf of purchaser. He relied upon the decision of Apex Court in the case T.B.L. Remco Cement Distribution Company State of Tamil Nadu v. State Govt. reported in AIR1993 SC 123 , 1992 (2 )SCALE850 , (1993 )1 SCC192 , [1992 ]Supp2 SCR78 for Hindustan Sugar Ltd and latest judgment of this Court in the case of CIT v. Sunil Kumar Coal Agent, Gorakhpur UPTC 2003 page 1036.;