Dealer status and non-registration assessment under Bombay sales tax law turned on sales effected in Bombay through an agent.

Sales effected within Bombay through a clearing agent meant the assessee carried on business as a dealer in the province, even though contracts were made at Nagpur and delivery was arranged through an agent there. On those facts, the dealer requirement under section 2(c) of the Bombay Sales Tax Act, 1946 was satisfied in favour of the Revenue. Where a taxable dealer failed to apply for registration, section 11(5) applied as the special provision for non-registration, and section 11A, which dealt with escaped or under-assessed turnover after returns, was inapplicable. The reference was therefore answered against the assessee on both issues.

---

---

Issues: (i) Whether the assessee was a dealer within the meaning of section 2(c) of the Bombay Sales Tax Act, 1946. (ii) Whether section 11(5) of the Bombay Sales Tax Act, 1946 or section 11A of that Act was the proper provision to apply to the assessee's case.

Issue (i): Whether the assessee was a dealer within the meaning of section 2(c) of the Bombay Sales Tax Act, 1946.

Analysis: The decisive finding recorded by the lower authorities was that the goods were in fact sold in Bombay through the assessee's clearing agent. On that footing, the assessee carried on the business of selling goods in the Province of Bombay. The circumstance that contracts may have been entered into at Nagpur and delivery effected through an agent in Bombay did not displace the finding that the sales took place in Bombay.

Conclusion: The assessee was a dealer within the meaning of section 2(c) of the Bombay Sales Tax Act, 1946, and this issue was answered in favour of the Revenue.

Issue (ii): Whether section 11(5) of the Bombay Sales Tax Act, 1946 or section 11A of that Act was the proper provision to apply to the assessee's case.

Analysis: Section 11(5) specifically governed the case of a dealer liable to pay tax who had failed to apply for registration. The assessee had not been registered during the relevant period, and the facts found brought the case within that provision. Section 11A was treated as dealing with escaped or under-assessed turnover where a return had been made, and was therefore not the appropriate provision on these facts.

Conclusion: Section 11(5) of the Bombay Sales Tax Act, 1946 was the proper provision and section 11A was inapplicable; this issue was answered in favour of the Revenue.

Final Conclusion: The reference was answered against the assessee on both questions, with the statutory assessment made under the provision dealing with failure to register.

Ratio Decidendi: Where the factual finding is that sales were effected within the taxing territory, the seller is a dealer there; and where a dealer liable to tax has failed to apply for registration, the special charging and assessment provision for non-registration applies rather than the escaped-assessment provision.

---