TaxTMI 
TaxTMI 
1980 (11) TMI 147
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.... delivered to the buyer. The petitioner-firm has been making monthly returns of the turnover from December, 1978, to March, 1979, but has not been including the sales tax collected by it under suspense account by way of debit notes. It has, however, been informing the commercial tax authority concerned by way of separate letters the amount so collected under debit notes claiming that it was not part of the turnover and as such was not included in the returns. The petitioner-firm has been paying the sales tax due as per its monthly returns. On 3rd July, 1979, the Special Commercial Tax Officer, Intelligence, Hyderabad-I, issued a notice to show cause why the sales tax component mentioned in the debit notes should not be added to the turnover. The petitioner-firm submitted its explanation and produced its account books which disclosed that a sum of Rs. 16,81,240 was collected by the petitioner-firm under the debit notes, as sales tax and kept in suspense account from December, 1978, onwards. These account books supported the petitioner's statement that the sales tax component was not included in the bills and that it was collected under separate debit notes. The Special Commercial Ta....
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....follows: "26. All liquors other than At the point of country liquor but including first sale in the vodkaState. (a) not covered by item (b) 75 paise in the rupee. below. (b) where the consideration for 40 paise in the rupee." the sale or purchase of liquor includes the duties of excise payable under the Andhra Pradesh Excise Act, 1968. It may be noticed that prior to 17th January, 1978, item 26 read as follows: "26. All liquors other than At the point of 25 paise in the rupee." country liquor. first sale in the State. Before the item was substituted by section 6(1) of Amendment Act 14 of 1978 no distinction was made in the levy of sales tax on the ground whether the consideration for the sale or purchase of liquor included excise duty payable under the Act or not. It was a uniform rate of 25 paise. Every dealer other than a casual trader and an agent of a non-resident dealer whose total turnover for a year was not less than Rs. 25,000 was liable to pay a tax at the rate of four paise in every rupee of his turnover. Sub-section (2) of section 5 lays down that notwithstanding anything contained in sub-section (1) in the case of goods mentioned in the First Schedule,....
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....l amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing of value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof: Provided that in the case of a sale by a person whether by himself or through an agent of agricultural produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant or otherwise, the amount of the consideration relating to such sale shall be excluded from his turnover when such produce is sold in the form in which it was produced, without being subjected to any physical, chemical or other process for being made fit for consumption save mere cleaning, grading, or sorting; Explanation.-Subject to such conditions and restrictions, if any, as may be prescribed in this behalf (i) the amount of such consideration shall, in relation to a works contract, be deemed to ....
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....ods, but also includes "any sums charged by the dealer for anything done in respect of the goods sold at the time of or before the delivery of the goods and also any other sum charged by the dealer whatever be the description, name or object thereof". The sales tax that is charged and shown in the bill is paid by the purchaser and collected by the seller before the delivery of the goods. It is paid along with the other amount which admittedly forms part of the consideration for the goods. When the total amount of the bill comprises of the amount stated to be the price of the goods plus the amount of sales tax in view of the definition of "turnover" contained in section 2(1)(s), it cannot but be held that the total amount set out in the bill of sale constitutes the consideration for sale and as such is included within the definition of "turnover". The reasons for so holding is not far to seek. Only on payment of the entire amount shown in the bill, i.e., the price of the goods plus sales tax, the goods will be delivered and the title to the goods would pass to the purchaser. It is, therefore, difficult to find any scope for the argument that the sales tax component even in a case wh....
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.... Goods Act and any other sum collected not strictly forming part of the consideration for the sale cannot be deemed to be the sale price merely because it is collected at the time of the sale. In this behalf they point out that some times the tax payable under the Andhra Pradesh General Sales Tax Act is at the point of sale and at other times it is at the point of purchase. Every amount of tax collected at the point of sale does not necessarily constitute part of the sale consideration and consequently cannot be deemed as part of the turnover. The same should apply to a case where the amount is collected by the dealer expressly as sales tax from the purchaser at the time of sale. So long as the Act does not prohibit the passing of the sales tax component to the purchaser, the dealer should be deemed to be an agent of the Government for collecting of the sales tax, and in setting out the sales tax component specifically in the bill, he clearly indicates the amount of consideration for the sale and the amount of tax collected by him and as such the sales tax component cannot be deemed to be part of the turnover. On the other hand, it is contended on behalf of the revenue that the con....
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....e of an ounce of tobacco is what it is because of the rates of tax, but on a sale there is only one consideration, though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer; if the buyer agrees to the price it is not for him to consider how it is made up, or whether the seller has included tax or not." The same view was approved and more effectively put by Lawrence, J., in Paprika v. Board of Trade [1944] 1 All ER 372 thus: "Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands, but it does not cease to be the price which the buyer has to pay even if the price is expressed as x plus purchase tax." In State of Bombay v. United Motors (India) Limited [1953] 4 STC 133 (SC), it was pointed out that the incidence of sales tax is really on the consumer and it is in substance a tax imposed on the goods on the occasion of sale. The ultimate economic incidence of the sales tax is on the consumer or the last purchaser and whatever he pays for the goods is paid only as price, that is to sa....
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....two English cases on the question as to what constitutes consideration for sale or price for the sale of goods, Viswanatha Sastri, J., proceeded to consider whether sums collected by a dealer from a purchaser as "dharmam" or "charity" on the occasion of the sales should be included in the turnover, and repelling the contentions to the contrary, made certain observations which are pertinent to the contentions now raised before us. Viswanatha Sastri, J., observed: "The fact that the payment is voluntary does not affect the question. Even the sale and the payment of the price are voluntary in the sense that the seller is not obliged to sell and the buyer is not obliged to buy except by their own choice and on their own terms. The fact that the payment to charity is made as a matter of trade usage only shows it is an incident that attaches to every contract for sale of goods, though not expressly stipulated, because it is so well-known and so widely recognised and acted upon. The fact that the payment is not shown in the bill or invoice as part of the price but separately as an item charged to the purchaser is not a decisive factor. So are processing and packing charges and sales ta....
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....act that the decision was rendered with reference to the definition of "turnover" contained in section 2(i) of the Madras General Sales Tax Act and not with reference to section 2(1)(s) of the Andhra Pradesh General Sales Tax Act. He contends at the outset that these observations of the Full Bench are obiter inasmuch as that arose out of a case relating to the question whether "dharmam" collected by the seller from the purchaser should be included as part of turnover and not in a case raising the question whether the sales tax collected by the seller should be included as part of his taxable turnover. According to him, it cannot be said to be an authority for the proposition that sales tax passed on to the purchaser should be computed as part of the taxable turnover of the dealer. He also contends that even otherwise this view of the Full Bench has been considerably shaken by the subsequent decisions of the Supreme Court which, according to him, have proceeded to hold that it would be part of the taxable turnover only if such amount has gone into his common till. He also argues that the subsequent decisions rendered by the Supreme Court draw a distinction on the basis whether a par....
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.... could be included as part of the turnover, it referred the matter to the Full Bench obviously to consider whether the amount collected by way of "dharmam" or charity in one case and sales tax in another case from the buyer stood on the same footing and was "other sum collected" for passing the title in the goods to the buyer at the time of sale and consequently was a sum includible as part of the taxable turnover. When the matter had thus come up before the Full Bench, the Full Bench in our opinion was specifically seized of the question whether the sales tax component could be treated as part of the taxable turnover of a dealer. Having regard to the scope of the reference and the opinion handed out by the Full Bench, we are unable to accept that the principle laid down by the Full Bench should be confirmed merely to the facts of that case and govern only the question "whether 'dharmam' collected by the seller should be included in the taxable turnover and not cover cases relating to sales tax component". The question referred to the Full Bench and the answer of the Full Bench, in our view, is wide enough to cover the question whether the sales tax component as well could be in....
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....ollected by a registered dealer by way of tax under section 8-B part of the assessable turnover, but that the Act as it stood then did not make it part of the assessable turnover. The legislature had the competence to enact section 8-B and it had therefore the power to repeal it also. If section 8-B had been repealed, amounts collected to cover the sales tax by a registered dealer could legitimately have been included in his taxable turnover............ Even if the registered dealer collects the amount by way of tax under the authority of section 8-B, the payment is by the purchaser on the occasion of the sale by the dealer. Vis-a-vis the dealer it is in reality part of the price the purchaser has to pay the seller for purchasing the goods..........." The Supreme Court in George Oakes (Pvt.) Limited v. State of Madras [1961] 12 STC 476 (SC) after referring to the two English cases in Paprika Limited v. Board of Trade [1944] 1 All ER 372 and Love v. Norman Wright (Builders) Limited [1944] 1 All ER 618 stated that: "........the observations (therein) are apposite even in the context of the provisions of the Acts we are considering now, and there is nothing in those pr....
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.... Court in George Oakes (Pvt.) Limited v. State of Madras [1961] 12 STC 476 (SC) where the view taken by the Madras High Court in Sri Sundararajan and Company Limited v. State of Madras [1956] 7 STC 105 was approved..........." Then their Lordships referred to what S. K. Das, J., said about the observations in the two English cases mentioned above. In McDowell & Company v. Commercial Tax Officer [1977] 39 STC 151 (SC); AIR 1977 SC 1459 the Supreme Court noted: "The reason for inclusion of tax or a duty in the turnover was explained in two decisions of this court bearing the same cause title, viz., George Oakes (P.) Ltd. v. State of Madras [1961] 12 STC 476 (SC) and [1962] 13 STC 98 (SC). " In the first of these cases, it was observed "Under the definition of turnover the aggregate amount for which goods are bought or sold is taxable. This aggregate amount includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may turn it over again and again till he finally hands it to Government." In the other ....
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.... He points out that the scheme of the A.P. General Sales Tax Act would disclose that sales tax collected by the seller was never intended to be treated as part of the turnover at least in cases where the monthly returns are filed by the dealers. Return A-2 form is required to be made under rule 17 by every dealer whose turnover exceeds rupees one lakh and every newly registered dealer irrespective of the total amount of turnover. Form A-2 prescribed for returning the monthly turnover specifically requires the dealer to enter the amount of sales tax collected by him. He also refers to the several G.Os., i.e., G.O. Ms. No. 645, Revenue (S.T.), dated 13th April, 1978, G.O. Ms. No. 791, Revenue, dated 10th May, 1978, G.O. Ms. No. 606, Revenue (S.T.), dated 7th April, 1978, and G.O. Us. No. 878, Revenue (S.T.), dated 25th May, 1978, which specifically exempt a dealer from payment of tax, if no sales tax is charged by him. He also points out that section 30-A of the Andhra Pradesh General Sales Tax Act provided that if sales tax was collected by a dealer, he should pay the same. That provision was held to be ultra vires by the Supreme Court (sic) in Lakshminarayana Commercial Corporation....
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....ted by the dealer for parting with the title with goods and thus being the price realised by sale of goods would be properly part of taxable turnover. Those provisions in fact give an indication that nothing prohibits the seller from passing on the tax leviable on the dealer to the buyer. Mr. Dasaratharama Reddi, the learned counsel for the petitioner, however, points out that with respect to certain fees and duties and certain taxes, even though collected by the seller from the buyer at the time of sale, the later Supreme Court decisions have held that they cannot be treated as part of the consideration for the sale and as such they cannot be included as part of the taxable turnover and cannot be assessed to sales tax. We may refer to those several decisions on which Mr. S. Dasaratharama Reddi, the learned counsel for the petitioner, placed reliance in this context. In State of Orissa v. Utkal Distributors (P.) Ltd. [1966] 17 STC 320 (SC), the Supreme Court held: "The Central sales tax paid by the assessee at the time of purchase and realised from the customers under the provisions of the notification did not form part of the price paid by the customers to the assessee, a....
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....taining the material and also such additional Central sales tax, if any, incurred on the sale to the customer. Thus, the payment of Central sales tax having been made the liability of the purchaser of the controlled commodity the dealer or the stock-holder was treated as a mere agent for the collection of the tax at the time of the sale of the controlled commodity. The sales tax so collected was declared to be not part of the "taxable turnover" under the special provisions of the Orissa Sales Tax Act on the ground that as per the definition of "taxable turnover" under that Act the tax, if any, paid by the purchaser to the dealer was excludible in arriving at the "taxable turnover", and not on the ground that it was not part of the price for sale of the goods. The Supreme Court did not lay down as a general principle that any amount collected by the dealer specifically as sales tax, must necessarily be excluded in computing the "turnover" irrespective of the definition of "turnover" under the provisions of any particular enactment. The principle cannot, therefore, be extended to the case of a dealer in liquor for determining his turnover under the A.P. General Sales Tax Act where th....
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....o that conclusion the Supreme Court did not differ from the principle laid down in George Oakes (P.) Ltd. v. State of Madras [1961] 12 STC 476 (SC) or Delhi Cloth and General Mills Co. Limited v. Commissioner of Sales Tax, Indore [1971] 28 STC 331 (SC). In fact, it affirmed that view and distinguished the case before it in the following words: "So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers, the same can only be considered as valuable consideration for the goods sold. It is clear from section 21-A of the Madras Prohibition Act, 1937, that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller. That is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us." This decision far from helping the contention of the petitioner's counsel lends support to the conclusion reached by us above. Reliance is also p....
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....uors before the quantity is lifted from the distilleries or the bonded warehouses on the strength of the distillery or the warehouse passes, the amount so paid is not included in the bill of sale as consideration for the sale. Thus, the excise duty or the countervailing duty is not charged by the dealers, but is charged by the excise authorities and is deposited directly by the buyers of the liquor in the State exchequer. Hence, the sales tax authorities were not competent to include that amount of excise duty and countervailing duty paid by the purchasers in the turnover of the appellants. The reasons for inclusion of such tax or duty in the "turnover" as explained in George Oakes case [1961] 12 STC 476 (SC) and George Oakes (P.) Ltd. v. State of Madras [1962] 13 STC 98 (SC); AIR 1962 SC 1352 were not dissented from in this case. In fact the Supreme Court categorically observed as follows: "Under the definition of turnover in the principal Act the aggregate amount for which goods are bought or sold is taxable. This aggregate amount includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which ....
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....tee, cannot be considered as forming part of consideration paid or payable by the purchaser to the commission agent in respect of purchase of goods and therefore cannot be included in the turnover of purchases for purposes of levy of tax. It rejected the third contention, namely, that the commission payable by a purchaser of goods to the commission agent operating within the market area being a tax payable by the purchaser by virtue of section 10(2) of the Adhiniyam read with rule 79(3) of the Rules framed thereunder cannot also be included in the turnover of purchases. Reiterating the principles laid down in George Oakes case [1961] 12 STC 476 (SC) and Delhi Cloth and General Mills Company Limited v. Commissioner of Sales Tax, Indore [1971] 28 STC 331 (SC) his Lordship emphasised the distinction in the following words: "........where a dealer is authorised by law to pass on any tax payable by him on the transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales or purchases but where there is no statutory provision authorising the dealer to pass on the tax to the purchaser, such tax does form part of the considera....
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....m. If that be so, the tax collected by the dealer from his purchasers becomes a part of the sale price fixed as defined in section 2(o)." Even while so laying down, the Supreme Court declared that where the provisions in the Sales Tax Acts confer power on the dealers to pass on the incidence of tax to the purchasers, may call for different considerations. It must be noted that so far as the Andhra Pradesh General Sales Tax Act is concerned, which renders the dealer liable to pay tax, it does not contain any such special provision authorising the dealer to pass on the burden of tax to the purchasers. Reliance was also placed by the learned counsel for the petitioners on a Division Bench judgment of this Court reported in Hyderabad Race Club v. Betting Tax Officer (1979) 1 An WR 231 which concerns payment of tax by the Hyderabad Race Club on the collection made by it for admitting persons into its enclosures. On a consideration of the provisions of the Andhra Pradesh (Telangana Area) Horse Racing and Betting Tax Regulation, the court held: "..........the payment of tax at the rate of 25 per cent of the gross sum arises in cases of the tax payable by way of consolidate....
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....Sale of Goods Act statutorily lays down that in such cases, if there is an increase of customs duty or excise on goods and any tax on the sale or purchase of goods, in the absence of any contract to the contrary, the seller may add such increased amount of tax to the contract price. It also provides that if there is any decrease or remission, the buyer may deduct so much amount from the contract price as would be equivalent to the decrease of tax or remitted tax. This provision does not deal with the existing liability to tax; it only deals with the liability in respect of increase or decrease in tax or duty subsequent to the date of contract. Further, it only authorises the seller to add to or deduct from the contracted price. Such a provision, in our view, does not affect the principle laid down by the Supreme Court that in determining whether the tax collected by a dealer at the time of the sale of the goods should be included in his turnover or not. It was also contended that the Supreme Court has drawn a distinction between cases where the prices of goods are controlled by law and cases of free sales or voluntary sales. The learned counsel urges that in a later case, Vishnu....
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.... be express. Offer and acceptance can be spelt out from the conduct of the parties which covers not only their acts but omissions as well." So much so, in Hindustan Sugar Mills Limited v. State of Rajasthan [1979] 43 STC 13 (SC), the freight charges added to the controlled price of a controlled commodity and recovered from the purchaser was held to be part of the consideration for the sale and was treated as part of the turnover liable to tax. In this, the view taken in George Oakes case [1961] 12 STC 476 (SC) was reaffirmed. Reliance was also placed by the learned counsel for the petitioners on the decision of the Supreme Court in P.S.S. Kharkhane (P.) Ltd. v. State of Mysore [1973] 32 STC 104. That was a case where notwithstanding that the Board's standing order specifically directed not to include the sales tax in the taxable turnover, it was included in the turnover of the dealer. The contention of the dealer that having regard to the Board's standing orders and the price list which specifically stated that the sales tax would be extra the sales tax component should not be computed in the turnover, was upheld. The court held that the bills must be viewed in the contex....
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.... the same position as a seller who is authorised by the enactment to expressly pass on the tax to the purchaser. We are unable to agree for the simple reason that as laid down by the Supreme Court in Delhi Cloth and General Mills Company Limited v. Commissioner of Sales Tax [1971] 28 STC 331 (SC), the burden of tax is imposed by the statute and not regulated by contract. Unless expressly authorised by the provisions of the particular Sales Tax Act, a dealer cannot recover the tax from the buyer. If at all, he can recover it only by virtue of a contract for sale under which the buyer either expressly or impliedly agrees to pay not only the price of the goods as such but also the tax as part of the consideration for the goods purchased by him. Of course, where there is express prohibition against passing on of the tax to the buyer, even if the seller were to recover the amount from the buyer as consideration, such amount would be includible in the taxable turnover. So also where any amount of tax over and above the tax imposed by the statute is collected, that excess amount is paid as. consideration for sale and as such would also be includible in the taxable turnover. As the inciden....
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....ision, in our view, does not in any way advance the case of the petitioner. There the liability of the entire turnover to tax was itself in doubt and it was a case where the consideration for a particular transaction was includible in turnover and assessable to tax and not a case where part of consideration of a transaction of sale was or was not liable to be included in the turnover. The dispute is not as to the quantum of turnover, but whether the particular transaction was liable to tax. When the sales tax payable on the sale of goods is collected by the seller from the purchaser to part with his title in the goods to the purchaser, that becomes part of the price and that amount is includible in the turnover of the dealer. A dealer cannot escape this liability by merely adopting any particular method of accounting. The fact that the amount realised by the dealer from the purchaser for the sale of goods is kept in the suspense account till the assessment of the seller is completed or that it is not included in the bill or in the invoice and recorded separately is not material. What is material is whether that amount was collected from the purchaser by the seller to part with h....
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....s tax is included in the taxable turnover, there would be heavy incidence of tax and now that after the amendment of the Act, sales tax on liquor is as high as 75 per cent, if a dealer is to pass on the tax to the purchaser, in some cases, he may have to collect more than 500 per cent tax on the value of the goods and that would not only stifle his business but even affect the property rights of the petitioner. The goods in question with which we are concerned in these writ petitions are liquor and beer. As laid down by the Supreme Court in Nashirwar v. State of Madhya Pradesh AIR 1975 SC 360 business in liquor is such that no citizen can claim to have a fundamental right to carry on the same. As reiterated by the Supreme Court in Har Shankar v. Deputy Excise and Taxation Commissioner AIR 1975 SC 1121 even if the business in such goods is wholly prohibited no citizen can complain of any violation of his fundamental rights and if the State in its wisdom, has imposed such a heavy incidence of tax, may be, it has done so, with a view to restrict this business. When the State has an absolute right even to prohibit the sale of liquor, no valid complaint can be made that the incidence of....
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....urchaser does not render the amount which he collects from the purchaser a tax. As discussed earlier, it is realised by him and paid by the purchaser only as consideration for the sale of goods, i.e., price. Thus the very basis of the contention that it amounts to a tax on tax falls to the ground. Dealing with a similar contention with reference to section 8-B of the Madras General Sales Tax Act and the Madras General Sales Tax (Turnover and Assessment) Rules, the Supreme Court observed in George Oakes case [1961] 12 STC 476 (SC) as follows: "........(a) a registered dealer is enabled to pass on the tax, (b) an unregistered dealer cannot do so, and (c) the amount collected by way of tax is to be shown separately, for it has to be paid over to Government. This does not mean that it is incompetent to the legislature enacting legislation pursuant to entry 54 in List II by suitable provision to make the tax paid by the purchaser to' the dealer together with the sale price in consideration of the goods sold, a part of the turn. over of the dealer; nor does it mean that the tax as imposed by Government is a tax on the buyer making the dealer a mere collecting agency so that the tax....
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.... in the goods to the purchaser, this amount constitutes the price for the sale of the goods and not tax as such and would be part of the turnover liable for tax. Under the Andhra Pradesh General Sales Tax Act or in any other law governing the sales of liquor in Andhra Pradesh, there is no statutory provision imposing the liability of such tax on the purchaser or expressly authorising the seller to pass on the tax to the purchaser of liquor. As found by the sales tax authorities, this tax is, being realised by the dealer at the time of the sale of the liquor, passed on to the purchasers. The mere fact that there was a contemporaneous agreement to refund the amount in the event of the same not being charged by the commercial tax authorities or the fact that it was kept under suspense account separately and was not shown in the bill, is not decisive of the fact that it was not part of the consideration or that it was not charged by the dealer to transfer the property in the goods to the buyer. Therefore, the amount of tax so collected and passed on to the purchaser also forms part of the price for the sale of the goods and must therefore be treated as "turnover" exigible to tax. ....