1953 (8) TMI 16

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.... this turnover was never in dispute. For the same period, he showed his turnover as a selling agent, i.e., a commission agent selling goods on behalf of known principals, at Rs. 8,89,297-11-5. As a buying agent, his turnover was Rs. 88,684-0-0. He was assessed to a sales tax of Rs. 9,779-13-1 on these two items. The plaintiff filed the suit, out of which this appeal arose, for a declaration that the levy of sales tax on his turnover as a commission agent, i.e. both as a selling and as a buying agent, was illegal. The claim was resisted, among others, on the ground that the plaintiff collected commission both from the buyer and seller, and that the plaintiff allowed unauthorised rebates to some of the buyers; but these conten- tions were ....

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....ns were made over to the dhallalis. But, in the assessment year, out of the amounts collected as dhallal from the various buyers, a sum of Rs. 302-10-6 was not paid to the dhallalis. The plaint- iff, however, claimed, as P.W. 1, that these amounts had been disbursed (1) (1952) I.L.R. 1952 Mad. 571; 3 S.T.C. 121. in the next accounting year. But the account books of the next account- ing year were not produced. The learned Subordinate judge declined to accept the oral evidence of P.W. 1 on this point and held that this sum of Rs. 302-10-6 had been utilised by the plaintiff for himself. The plaintiff rested his case that he was entitled to the exemption granted by Section 8 of the Act on two grounds. One was that the collection of dharmam ....

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....t there was such a trade usage was specifi- cally averred in paragraph 11 of the plaint. The Government, whose officers must certainly have been aware of the conditions under which trade was carried on at Tellicherry, did not specifically deny it. All that the defendant pleaded was that the defendant "was not aware of any such usage". The Commercial Tax Officer, in the course of his assessment of merchants at Tellicherry, must have come across the books of various merchants; and, if for instance, the plaintiff, or P.W. 2 or P.W. 4, were the only people who collected dharmam or dhallal, it should have been easy to prove that. We are really unable to see any real basis for reject- ing the testimony of P.Ws. 1, 2 and 4. We accept that evidence....