2004 (11) TMI 544 - HC - VAT and Sales Tax

Pre-sale Freight Taxable Turnover Ruling: Dealer Status & Transaction Nature Reassessed

Commissioner of Trade Tax, UP., Lucknow Versus Sharma Coal Co.

The court held that pre-sale freight incurred by a dealer in bringing goods to their destination is part of the taxable turnover under the U.P. Trade Tax ... - Issues Involved:1. Whether freight is part of taxable turnover under the U.P. Trade Tax Act.2. Determination of the dealer's status as a commission agent or principal seller.Detailed Analysis:1. Freight as Part of Taxable Turnover:The primary issue is whether the freight incurred in bringing coal from the colliery to the dealer's destination should be included in the taxable turnover. The Tribunal previously held that freight should not be part of the turnover. However, the court emphasized that under Section 2(i) of the U.P. Trade Tax Act, the 'turnover' includes the aggregate amount for which goods are supplied or sold, which implicitly includes freight paid by the dealer to acquire the goods. The exclusion provided in Explanation II(i) pertains to freight paid by buyers post-purchase, not pre-sale freight paid by the seller. The court referred to precedents, including Dyer Meakin Breweries Ltd. v. State of Kerala and Hindustan Sugar Mills Ltd. v. State of Rajasthan, to support that pre-sale freight is part of the sale price and hence taxable turnover.2. Dealer's Status as Commission Agent or Principal Seller:The dealer claimed to be a coal agent under the U.P. Coal Control Order, charging a 2% commission and separately listing freight in the bills. The court noted that being a coal agent under the Coal Control Order does not automatically make the dealer a commission agent for tax purposes. The essence of an agency relationship, as defined under Section 182 of the Contract Act, 1872, requires a contractual agreement where the agent acts on behalf of the principal. The court found no evidence of such a contract between the dealer and the buyers. The Tribunal's earlier decision lacked a detailed examination of the nature of transactions and the existence of an agency contract. Thus, the matter was remanded to the Tribunal to reassess whether the dealer acted as a commission agent based on the true nature of the transactions and any contractual agreements.Conclusion:The court concluded that merely holding a B licence and charging commission and freight separately does not suffice to classify the dealer as a commission agent. The Tribunal's decision was set aside, and the case was remanded for a fresh examination of the dealer's status and the inclusion of freight in the taxable turnover. The Tribunal is directed to evaluate the true nature of the transactions and the existence of any agency contract between the dealer and the buyers.