N. M. KASLIWAL, J. - (1.) ON an application filed by the department under section 15 of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), the Board of the Revenue has referred the following question of law for the opinion of this Court : " Whether, under the facts and circumstances of the case, 'other charges' collected by the assessee for rendering unspecified services can be treated as commission, and whether such commission will not form part of sale price as defined in section 2 (p) of Rajasthan Sales Tax Act, 1954. "
(2.) THE facts of the case in brief are that M/s. Uttumal Gagumal (hereinafter referred to as "the assessee") was assessed to tax under section 10 of the Act for the period March 24, 1966 to April 11, 1967 (1966-67) by the Commercial Taxes Officer, Circle 'a', Jaipur City by order dated November 5, 1969. By this order an amount of Rs. 24,302. 50 shown as "other charges" was also subjected to tax. THE Commercial Taxes Officer in this regard held that the definition of "sale price" was very wide and the assessee was not entitled to take shelter of ignorance. THE assessee aggrieved against the order of the Commercial Taxes Officer, filed an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jaipur. THE Deputy Commissioner vide order dated June 13, 1972 dismissed the appeal so far as the above amount is concerned. An argument was raised on behalf of the assessee before the Deputy Commissioner that the aforesaid amount was different from the amount of commission charges. It was submitted that this amount was received on account of services rendered by the assessee to his principals. It was also submitted that the amount of adhat is treated to be a part of the sale price and tax is payable on such amount, but the amount which the assessee has received by way of "other charges" has been shown separately and not as a part of the sale price and as such no tax liability can arise on such amount. THE Deputy Commissioner held that the assessee failed to show as to for what services the assessee had received this amount. THE assessee has received this amount by way of adhat for the services rendered by him as commission agent. Apart from this, the assessee failed to show as to for what other services the aforefaid amount was received by the assessee. It was thus held that the assessee has tried to evade tax by showing this amount separately and as such the decision given by the Commercial Taxes Officer was upheld. The assessee then aggrieved against the order of the Deputy Commissioner, filed a revision before the Board of Revenue. Before the Board of Revenue it was argued on behalf of the assessee that a commission agent when he agrees to work for his principal as the latter's agent and to obtain for his principal the goods, he undertaken a duty to discharge by purchasing these goods and supplies them to his principal. Such a contract between the principal and the commission agent is not one of sales, but of agency and the transfer of property in the goods is not a "sale" within the meaning of the Sales of Goods Act. Learned counsel for the assessee placed reliance on Panna Lal Babu Lal v. Commissioner of Sales Tax, U. P. , Lucknow [1956] 7 STC 722 (All. ). The Government Advocate on the other hand, had argued before the Board of Revenue that according to the definition of "sale price", commission is included in sale price. He further argued that commission paid to the agent was not a discount within the meaning of the said definition. The learned Chairman of the Board of Revenue held as under : " As for the commission, the decision of the Andhra Pradesh High Court in Hyderabad Chemicals and Fertilizers Ltd. v. State of Andhra Pradesh [1968] 22 STC 298 does not apply to the facts and circumstances of the present case. On the other hand, the decision under the U. P. Sales Tax Act cited by the applicant applies to the present case with full force. Commission therefor, does not come under the definition of 'sale price'. " The revision was, therefore, accepted and the orders of the Deputy Commissioner (Appeals) as also of the Commercial Taxes Officer were set aside vide order dated May 8, 1975. Aggrieved by this order, the department filed a special appeal under section 14 (4a) of the Act, which was heard by Division Bench of the Board of Revenue. The learned Division Bench by order dated March 1, 1977 dismissed the special appeal. The learned Division Bench did not consider the contention of the department regarding liability to tax on the turnover of Rs. 24,302. 50 shows as "other charges". The department then filed an application under section 15 of the Act for referring three questions for the opinion of this Court. The Board of Revenue by order dated January 9, 1978 referred the only question mentioned above for the opinion of this Court and we are called upon to decide the above question only.
(3.) IT was contended by Mr. Bapna, learned counsel for the department, that the assessee was wrongly paying tax on purchase price of coke, but should have paid on the sale price. Besides that, the assessee had been charging some amount as "other charges" which during the relevant period amounted to Rs. 24,302. 50. The assess had not included the aforesaid amount in the gross turnover and taxable turnover. The assessee then filed four returns for the period under assessment and also filed revised consolidated return, but the same was not furnished in time according to Rules. The assessee had concealed this amount of Rs. 24,302. 50 apart from other transactions also in his turnover and had thus evaded the payment of tax. IT was submitted by the authorised representative of the assessee before the Commercial Taxes Officer that it was due to ignorance that tax was paid on purchase price, but as soon as it came to knowledge, he voluntarily filed the revised return and deposited the amount of tax. As regards the above mentioned "other charges" amounting to Rs. 24,302. 50 with which we are concerned, it was submitted on behalf of the assessee before the Commercial Taxes Officer that these were charges realised on commission account for the services rendered to his constituents and hence the same should not be included in taxable turnover and no penalty be imposed. IT was submitted by Mr. Bapna that the definition of "sale price" as given in section 2 (p) of the Act is wide enough to cover the "other charges" also which have been recovered by the assessee from the purchasers, even though it might have been shown separately as commission charges. On the other hand, it was submitted by Mr. Ghiya, learned counsel for the assessee that the above mentioned "other charges" have been realised by the assessee as commission charges from his principal for agreeing to work for his principal as the latter's agent and for discharging a duty of purchasing the goods and supplying the same to his principal. It was submitted that a contract between the principal and the commission agent is not one of sales but of agency and the transfer of property in the goods is not a sale within the meaning of Sale of Goods Act. It was submitted that on the above facts found proved by the Board of Revenue, it has been rightly decided that the amount of "other charges" was not realised but was charged from the principal and as such there was no question of any liability of tax on such amount. It was also submitted by Mr. Ghiya that this Court should decide the question of law on the basis of facts found proved by the Board of Revenue and this Court cannot assume or consider other facts which are not contained in the order of the Board of Revenue. Reliance in this regard was placed on Commissioner of Income-tax, West Bengal III v. Imperial Chemical Industries (India) (Pvt.) Ltd. [1969] 74 ITR 17 (SC), Karnani Properties Ltd. v. Commissioner of Income-tax, West Bengal [1971] 82 ITR 547 (SC) and Anil Kumar Roy Chowhury v. Commissioner of Income-tax, West Bengal II [1976] 102 ITR 12 (SC ). Mr. Bapna, learned counsel for the Department, on the other hand, submitted that the amount of Rs. 24,302. 50 shows as "other charges" was realised by the assessee from the purchasers and the Board of Revenue has totally misunderstood the nature of the transaction. There was no question of referring the question of law before this Court in case the amount of "other charges" in question was realised by the assessee from his principal. It was submitted by Mr. Bapna that the nature of the transaction is clearly mead out from the order of the Commercial Taxes Officer and the Deputy Commissioner (Appeals) and in any case if this Honourable Court is unable to decide the question of law on the facts stated by the Board of Revenue, then a further direction can be given by this Court under section 15 (4) of the Act to send an additional statement of the case setting out the facts in a correct manner. Reliance in this regard is placed on Lakshmi Cotton Mfg. Co. Ltd. v. Commissioner of Sales Tax, Bombay [1970] 26 STC 263 (SC) and Commissioner of Sales Tax v. Oil Mills Maithan, Agra [1971] 27 STC 121 (SC ). ;