- (1.) THIS is a revision against the order of the Deputy Commissioner, Excise and Taxation (Appeals) Jaipur dated 16. 2. 1962.
(2.) BRIEFLY stated the facts of the case are that the petitioner deals in cereals and pulses and while submitting returns to the Assessing Authority he claimed a turnover of Rs. 2,53,597/2/9 as deductions under sec. 4 of the Central Sales Tax Act. The Assessing Authority examined the books and vouchers of the petitioner and found that a turnover of Rs. 1,60,380/- is not sale to principals and also found that the petitioner has, charged central sales tax on this turn over. Accordingly the Assessing Authority assessed tax on this amount @ 1% and since the petitioner had not deposited the tax deliberately a penalty of Rs. 51/- was imposed. The petitioner went in appeal before the Deputy Commissioner, Excise & Taxation (Appeals) Jaipur who rejected the appeal on 16. 2. 62. Aggrieved by this order of the Deputy Commissioner the petitioner has come up in revision before the Board of Revenue. The counsel for the petitioner has argued that the learned Sales Tax Officer and the Deputy Commissioner have seriously erred in holding that the turnover of Rs. 1,60,380/- is sale to the principals outside the State. He has further argued that the petitioner purchased the goods in the capacity of an agent on behalf of their principal living outside the State of Rajasthan and transferred the goods to their principal. He has cited VII STC page 599, 722, 58, IX STC page 428, XII STC page 18 and Rajasthan Taxation Report page 121. In VII STC page 58 it has been held by Patna High Court that in order to constitute sale, there must be a transfer of property in goods. According to VII STC page 599 it was held that unless the levy of tax was justified by the express terms of the Act and the Rules, the petitioners were not bound to pay the tax merely because they had collected it from their principals. According to VII STC page 722 it has been held by the Allahabad High Court that the contract between principal and the commission agent is not one of sale but of agency, and the transfer of the property in the goods is not a sale. According to IX STC page 428 it has been held by the. Supreme Court that the assessee is not liable to sales tax because assessee did not at any time handle the goods or receive the sale price. According to STC XII page 18 it has been held by the Supreme Court that the respondents were not dealers inasmuch as they were not carrying on the business of selling coal and that their position was merely that of agents, arranging the sale to a disclosed purchaser, though guaranteeing payment to the colliery on behalf of their principal. The Rajasthan Taxation Report page 121 has also been cited according to which M/s Karamchand Thapar and Bros were assessed for sales-tax for the coal supplied from the collieries direct to the State and consumed by it. The petitioners made over the Railway receipts to the State Engineer and collected price of coal from the State and merely received brokerage. At no point right from the movement of the coal from collieries down to the time it went into the furnace of the State M/s Karamchand Thapar acquired any right or title to transfer by way of sale. Hence supply by the contractor did not amount to sale. The learned counsel for the petitioner has argued that since the petitioner had purchased the goods in the capacity of an agent on behalf of their principal they were not liable to pay sales tax on the turnover of Rs. 1, 60,380/- which has been wrongly assessed by the Sales Tax Officer. The learned counsel for the petitioner has further argued that a penalty of Rs. 51/- has been wrongly imposed on him because he could not deposit the tax as he never considered himself liable to sales over the turnover of Rs. 1,60,380/ -. Hence the penalty may be waived. The learned Government Advocate has argued that this is a revision against the concurrent finding of both the lower courts. He has cited AIR 1951 Raj. p. 109 and a decision of the D. B. of Revenue Board dated 19. 12. 63 in Revision No. 113/ Alwar 62/s. T. M/s. Banwarilal Pooranchand, Kherli vs. State of Rajasthan in support of his contention. He has further argued that the petitioner made purchases under the Registration Certificate and he has charged sales tax from their so called principals and transaction has been done in the name of the petitioner. Hence the Sales Tax Officer has rightly assessed sales tax on the turn over of Rs. 1,60,330/ -. He has further argued that the rulings cited by the counsel for the petitioner do not apply to the present case because in those cases the assessees have done transactions in the name of their principals but in the present case the assessee has made purchases in his own name. I have heard the counsel for the parties and have gone through the entire record. The assessee has failed to prove that he purchased his goods as a commission agent for the outside dealers. The petitioner has charged sales tax as well as commission from their principal. The various rulings cited by the counsel for the petitioner do not apply to this case because the petitioner is bound to pay tax which is leviable by the express terms of sec. 4 of the Central Sales Tax Act. It is clear from the records on the file that the assessee has made these purchases on the strength of his own registration certificate and has charged sales tax as well as commission. These purchases have not been made in the name of his principals. I see no substance in this revision and hence if stands rejected. As regards penalty of Rs. 51/- I find no valid grounds for its imposition and hence set it aside. .;