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Judgment
R.J. Bhave, J.—This is a reference u/s 44 of the Madhya Pradesh General Sales Tax Act, 1958. The Sales Tax Tribunal (Board of Revenue) has referred the following two questions for our decision:
(1) Whether, in the facts and circumstances of the case, the transactions amounting to Rs. 21,47,228 were sales and, therefore liable for inclusion in the turnover of the applicant for assessment to tax?
(2) Whether, in the facts and circumstances of the case, the transactions amounting to Rs, 5,35,404.15.0 were sales and, therefore, liable for inclusion in the turnover of the applicant for assessment to tax.
The assessee, Messrs. Anwarkhan Mehboob Company, is a firm which carries on the business of manufacture and sale of bidis at Jabalpur and other places in the State. This firm has also branch offices outside the State at places, like Lucknow, Kanpur, Delhi etc. The assessment period in question is 1-11-1948 to 21-10-1949-a pre-Constitution period. During that period, the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act) was in operation. The Assessee was a registered dealer under the Act and continues to be a registered dealer under the present Act (M. P. General Sales Tax Act, 1958).
During the assessment period, the assessee had despatched bidis worth Rs. 22,241-5-0 to various branch offices outside the then State of Madhya Pradesh and bidis worth Rs. 5,35,404-15-0 were supplied to other destinations outside the State where branch offices were not located. The contention of the assessee is that these despatches do not constitute "sale" and the price of the bidis so despatched was not liable to be included in the taxable turnover of the assessee. The Sales Tax Authorities as well as the Sales Tax Tribunal negatived the claim. The questions, referred to above, relate to the two kinds of despatches described above.
From the statement of the case it appears that the contention of the assessee was that the firm used to manufacture bidis at Jabalpur and used to despatch the same in bulk to the branch offices as per their requirements. These despatches were for replenishing the stock and not for the purpose of any contract or contracts of sale entered into by the branch offices. The sales were, in fact, effected by the branch offices after the receipt of the stock from the assessee firm. As to the despatches to places other than places where the branch offices were located, the case of the assessee was that the these dispatches were made on the direction of the branch offices and that the sales took place outside the State.
The assessee did not produce any order or contract forms in respect of the disputed transactions; nor was any letter or requisition from the branch offices produced. The only documents produced by the assessee were the specimen bills and lists of relative railway receipts furnishing particulars of goods supplied lo the branches. The assessees also examined its authorised representative, Khan Mohammad, and Accountant, Munawar Khan. Anne-xure VI-A is a specimen bill. It gives the bill number, the date, the number of bijak. The bill purports to be by the assesee on its branch. The details of the quantity of different brands of bidis, the rate and the price together with other charges, such as, packing, registration, excise-duty and railway freight are also given. At the end, there is a direction to credit the assessee''s account according to bijak-Annexure. VI-B is a specimen consolidated statement of the despatches from day to day. This statement gives the bill number, date of despatch, the place where the goods are despatched, the brand of the bidis, the quantity, the weight, the railway freight that is to be paid etc. From these two documents it appears that the goods were despatched to the branches under specific bills, separately priced and in respect of specific quantities of different brands. From the consolidated statement it appears that on the same day to the same branch office bidis were despatched under number of separate bills for specified brands and for specified quantity. These documents do not support the assertion of the assessee that the bidis were sent in bulk to the branch offices for the purposes of replenishing their stock. Khan Mohammad, the authorised representative of the assessee-firm, stated that bidis worth Rs. 5,35,404-15-0 were supplied to the destinations or stations other than the branches, but the bills and the railway receipts were sent to the branches which prepared their own bills and delivered the railway receipts and thus sold the goods. The indents were placed with the branch offices. The branches, after collecting their indents, intimated the head office to send the goods and on receipt of their requisitions, the supply was made. It was also admitted that copies of all the bills from the branches are received by the head office for the purposes of information and control. But no such bills or orders were produced. So far as the supplies to the branches are concerned, the authorised representative stated that during the year of assessment the firm had established four branches at Kanpur, Lucknow, Faizabad and Bombay. Before that, the bidis were supplied to the agents of the firm or other persons at those places. Some of them were pucca adalias. After the branches were opened, the orders of those persons are received at the branches; but sometimes complaints are made direct to the head office in case the goods are bad or damaged or the supplies are irregular or different. The authorised representative further stated:
We are in fact not in a position to supply their full demand of bidis. Wherever we find that our stock is in excess and can meet the local demand, we supply the goods to them.
He further stated that the head office does not directly receive any orders from the customers but they are received or collected by the branches in respect of goods of various brands manufactured and situated at Jabalpur and other manufacturing centres. The railway receipts and the bills were sent by registered post to the branch office. The accounts at the head office are settled yearly. It was admitted that neither at the bead office nor at the branches any order-book is maintained and the question of its production did not arise. On this evidence, the Deputy Commissioner of Sales Tax, M. P., came to the conclusion that the despatches (to the branches) made by the assessee were covered by Explanation II below section 2 (g) of the Act. The Deputy Commissioner of Sales Tax held:
From the insistent demands of the branch managers, it is evident that appellant''s bidis were in great demand in those markets. The buyers were anxious to get stocks of appellant''s brands of bidies and they were placing orders on the branches, so that there would be an uniterrupted supply of bidis. It is also amply clear that in a very large number of cases, orders were already accepted by the branches for the sapply of bidis. These circumstances lead to the inevitable conclusion that a very large proportion of the despatches were covered by previous orders accepted by the branches or head office, and to the best of my judgment 95 per cent of the despatches would seem to be so covered by previous orders. I determine appellant''s turnover covered by Explanation. (II) below section 2 (g) at Rs. 21,47,223 (as against total despatches of Rs. 22,60,241-5-0).
As to the despatches worth Rs. 5,35,404-15-0, the Deputy Commissioner of Sales Tax held:
............no prudent merchant will move the goods out of the State to distant places without first securing orders from the buyers. There is also enough evidence on record with which I shall deal subsequently to show that the appellant''s brands were in great demand and regular orders were being received by the appellants for their supply. The appellant also has failed to lead evidence for ruling out the possibility of existence of any prior orders relating to all these despatches. I, therefore, concur with the findings of the Assistant Commissioner that these were sales effected in Madhya Pradesh.
The Sales Tax Commissioner accepted the concurrent finding of fact of the Assistant Commissioner of Sales Tax and the Deputy Commissioner of Sales Tax and held that the despatches to the branch offices were covered by Explanation II u/s 2 (g) of the Act and were liable to be included in the turnover of the assessee. While confirming the finding, the Commissioner relied on an admission that the railway receipts relating to these despatches were sent through banks and that fact lent support to the finding that the despatches were as a result of contracts entered into at the time when the goods were in the State. The argument that there was no appropriation of the goods in Madhya Pradesh, when the despatches were made, was rejected by the Commissioner of Sales Tax and it was held that the case of The Commissioner of Sales-Tax, Eastern Division, Nagpur Vs. Husenali Adamji and Co., , was distinguishable.
The Sales Tax Tribunal, while dealing with the despatches to the Branches, held:
The nature of these transactions, in respect of which the assessing officer as well as the departmental authorities in first and second appeal have come to a concurrent finding, in that the branches get orders from third parties and send these orders to the Head Office, that the Head Office on accepting these orders and in fulfilment of the ensuing contracts sends the goods, that the railway receipts are sent through banks. This concurrent finding of fact cannot be interfered with in this revision nor is there any ground for doing it. These transactions, therefore, do not represent despatches of bidis from the Head Office to its branches for stocking the branches in anticipation of future sales but represent supplies in pursuance of contracts of sale. The fact that the railway receipts were sent through Banks and, therefore, the goods would be delivered only on payment of the price concludes the point that these despatches represent sales.
The Sales Tax Tribunal also held that the despatches in question attracted the operation of Explanation II to section 2 (g) of the Act. The Sales Sax Tribunal also confirmed the finding of the dales Tax Authorities that the despatches worth Rs. 5,35,404-15 0 (to) places other than the places where the branches were located were in pursuance of prior agreement of sale and that they were caught by Explanation II to section 2 (g) of the Act.
The contention of Shri Chitale, learned counsel for the assessee-firm, is that the taxing event is the sale of the goods; no tax can be levied unless the sale is effected. It is, therefore, necessary to see as to when and where the sale was effected. He urges that in the case of unascertained goods the sale is effected when the goods are appropriated towards the contract. Even if it is assumed that a large number of orders were already received and the despatches were made is satisfaction of those orders, that fact alone would not show that the goods were appropriated towards the orders already received. The very fact that the Deputy Commissioner of Sales Tax treated at least 5 per cent of the despatches as not representing the despatches in response to the orders indicated that the appropriation did not take place at Jabalpur but the appropriation was made when the goods were separately distributed to the customers at the branch offices as per their orders. Shri Chitale also drew our attention to the fact that the observation of the Commissioner of Sales Tax that the railway receipts were sent through banks was not borne out from the record. The Sales Tax Tribunal in the statement of the case also conceded this position but expressed its opinion that the possibility cannot be ruled out that such an admission was made by the assessee before the Commissioner of Sales Tax during arguments. In view of this uncertainty, we would not place any reliance on the fact that the railway receipts were sent through banks; but we will assume that the railway receipts were sent to the branch offices and the money was recovered there. In support of his argument that the sale is not complete till there is appropriation of the goods towards any particular contract, Shri Chitale strongly relied on the decision of the Supreme Court in The Commissioner of Sales-Tax, Eastern Division, Nagpur Vs. Husenali Adamji and Co., .
It has already been stated that the assessment was for the period 1-11-1948 to 21-10 1949 and that the same is governed by the provisions of the C. P. and Berar Sales Tax Act, 1947, as it stood during that period. Under the provisions of 1947-Act a dealer is required to pay tax on the taxable turnover during the year. ''Taxable turnover'' is defined to include all sales effected during the year after giving certain deductions, with which we are not concerned here. The definition of "sale" during the period in question stood as under:-
2 (g)''Sale'' with all its grammatical variations and cognate expressions means any transfer of properly in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge.
Explanation (I)-A transfer of goods on hire-purchase or other instalment system of payment shall, notwithstanding that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale.
Explanation (II).- Notwithstanding anything to the contrary in the Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made, shall wherever the said contract: of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar.
The Second Explanation was, however, substituted by Act No. XVI of 1949 to the following effect:
Explanation (II).-Notwithstanding anything to the contrary in the Indian Sale of Goods Act, 1930, the sale or purchase of any goods shall be deemed for the purposes of this Act to have taken place in the Province, wherever the contract of sale or purchase might have been made-
(a) if the goods were actually in this Province at the time when the contract of sale or purchase in respect thereof was made; or
(b) in case the contract was for the sale or purchase of future goods by description; then, if the goods are actually produced or found in this Province at any time after the contract of sale or purchase in respect thereof was made.
The amended Explanation was struck down as ultra vires by the Nagpur High Court in the case of Shriram Gulabdas v. Board of Revenue, M. P. 3 S T C 243, with the result that the original Explanation held the ground, as it was not effectively displaced. When the definition of ''Sale'' is read with the Second Explanation, it is apparent that if on the date when the agreement of sale is entered into with respect to any goods and if the goods are in existence in the Province of Central Provinces and Berar on the date of the agreement, it is deemed that the sale takes place within the Province of Central Provinces and Berar, though, in fact, under the provisions of the Indian Sale of Goods Act, 1930, the sale may take place outside the Province when the goods are appropriated towards the contract. The Sales Tax Tribunal and the Sales Tax Authorities have come to the conclusion that the goods were despatched in satisfaction of the contracts already entered into by the branches. That finding cannot be seriously disputed; nor can it be challenged before us in these reference proceedings. What was urged by Shri Chitale was that the Sales Tax Tribunal and the Sales Tax Authorities were in error in holding that the appropriation of the goods towards the contract also took place at Jabalpur. According to him, the goods were not separately sent to the purchasers and as such there could not be any appropriation at Jabalpur. Even if the goods were sent in satisfaction of the agreements already entered into, the appropriation actually took place at the branches when the goods were separately delivered to the customers. Shri Chitale, therefore, urged that the sales took place outside the Static of Madhya Pradesh. Even if the contention of Shri Chitale is accepted that the sales actually took place outside the Province of Central Provinces and Berar, by the Second Explanation the situs of the sale was fixed at Jabalpur by the fiction introduced under that Explanation and the sales in question were, therefore, rightly held to be taxable under the C. P. and Berar Sales Tax Act, 1947.
The provisions of section 2 (g) of the Bihar Sales Tax Act, 1947, which are identical with the provisions of the local Act, came up for consideration before the Supreme Court in Tata Iron and Steel Co. Ltd. v. State of Bihar 9 S C T 267, Their Lordships observed:
It will be noticed that section 4(1) imposed on the dealer the liability to pay a tax on ''sale'' as defined in section 2 (g). Both before and after the amendment of section 2 (g) the principal part of the definition meant the transfer of the property in goods. All that the second proviso did was not to extend the definition of ''sale'', but only to locate the ''sale'' in certain circumstances mentioned in that proviso in Bihar. The basis of liability u/s 4(1) remained as before, namely, to pay tax on ''sale''. The fact of the goods being in Bihar at the time of the contract of sale or the production or manufacture of goods in Bihar did not by itself constitute a ''sale'' and did not by itself attract the tax. The taxable event still remained the ''sale'' resulting in the transfer of ownership in the thing sold from the seller to the buyer. No tax liability actually accrued until there was a concluded sale in the sense of transfer of title. It was only when the property passed and the ''sale'' took place that the liability for paying sales tax under the 1947 Act arose. There was no enlargement of the meaning of ''sale'' but the proviso only raised a fiction on the strength of the facts mentioned therein and deemed the ''sale'' to have taken place in Bihar. Those facts did not by themselves constitute a ''sale'' but those facts were used for locating the situs of the sale in Bihar. It follows, therefore, that the provisions of section 4 (1) read with section 2 (g), second proviso, were well within the legislative competence of the Legislature of the Province of Bihar." [Pages 276-277]
Their Lordships, after considering various decisions, further observed:
For the purpose of the present case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods at the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, constituted a sufficient nexus between the taxing state and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained and delivered to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. There are relevant facts on which the State could well fasten the tax. If the facts in Raleigh Investment O:s case 12 I T R 265, were sufficient nexus there is no reason why the facts mentioned in the proviso should not also be sufficient. Whatever else may or may not constitute a sufficient nexus, we are of opinion that the two cases with which we are concerned in this case are sufficient to do so. [Pages 283-284]
From this majority decision of the Supreme Court it is clear that during the pre-Constititution period the State had authority to tax sales on the basis of nexus theory. Their Lordships have clearly pointed out that even if the sale takes place outside the State on appropriation, the situs of the sale can be fixed by resorting to the nexus theory and that the State Legislature had authority to do so and that in fixing the situs in that manner the definition of ''sale'' as given in the Indian Sale of Goods Act, 1930, was not, in any way, modified. In this view of the matter, the contention of Shri Chitale based on appropriation of the goods must be rejected. It has been accepted by the witnesses of the assessee-firm that the price of all the despatches was received by the assessee-firm. This means that the goods despatched to the branches were actually sold in pursuance of the agreements of sale. The situs of the sale is determined by Explanation II u/s 2 (g) of the Act within the Province of Central Provinces and Berar. The sales in question are, therefore, clearly taxable.
In the case of The Commissioner of Sales-Tax, Eastern Division, Nagpur Vs. Husenali Adamji and Co., , strongly relied on by Shri Chitale, it was observed by their Lordships of the Supreme Court:
There is no evidence that at the date when the agreement for sale was made, the particular logs delivered thereunder were in the Central Provinces in the shape of logs at all. Learned counsel says that, at any rate, they must have been in existence there in the shape of standing timber. Apart from anything else, the agreement here was not ''in respect of'' any standing timber and there was no provision in the agreement as between the respondent and WIMCO for severance of the standing timber before sale under that agreement. In order to attract Explanation II the goods, in respect of which the contract of sale is made, must, at the date of the contract be in existence in the Central Provinces, that is to say, that the goods must at the date of the contract be there in the form in which they are agreed to be sold. There is not an iota of evidence on that point. In our judgment, there is no force in this alternative argument. (Page 310.)
Their Lordships having come to the conclusion that the goods were not in existence when the contract was made had to fix the situs on the basis of the appropriation of the goods by application of the provisions of the Sale of Goods Act, 1930. In that context, it was observed that when the goods were ultimately accepted at Ambernath, a place outside the then State of Madhya Pradesh, the sale took place and that Ambernath was the situs of the sale. In that case, the Explanation II u/s 2 (g) of the Act was not attracted at all, as the goods were not in existence when the contract was made. Shri Chitale cannot, therefore, seek any assistance from the abovesaid decision. We are, therefore, of the opinion that the Sales Tax Tribunal was right in holding that the case was covered by. Explanation II u/s 2 (g) of the C. P. and Berar Sales Tax Act, 1947, and that both the items of Rs. 21,47,228 and Rs. 5,35,404-15-0 were properly included in the turnover of the assessee.
Our answers to the two questions are, therefore, in the affirmative. The reference is answered accordingly. The assessee shall pay costs of the Commissioner of Sales Tax. Hearing fee is fixed at Rs. 200.