The Mettur Chemical and Industrial Corporation Ltd. vs The State of Tamil Nadu

V. Ramaswami, J.—The petitioners returned for the assessment year 1966-67 a total and taxable turnover of Rs. 4,42,27,342.21 and Rs.

1,98,30,307.52 respectively. They claimed exemption, among others, in respect of two items. One was a sum of Rs. 77,604.20 representing

handling charges or loading charges and the other a sum Rs. 63,913 representing consignment sales. In respect of the first of the disputed turnovers

the case of the petitioners was .that the contracts were for ex factory price and they charged separately for loading and the said loading charges

are sometimes described as handling charges and sometimes as handling and loading charges. We have held in Mettur Chemical and Industrial

Corporation Ltd. v. State of Tamil Nadu by D.C.T.O., Omalur [1976] 37 S.T.C. 288. (T.C. No. 427 of 1970), which was one arising under the

Central Sales Tax Act in respect of the same assessment year and in respect of the same assessee that the loading charges are not liable to be

included in the taxable turnover if the conditions prescribed u/s 2(h) of the Central Sales Tax Act are satisfied. Even under the Tamil Nadu General

Sales Tax Rules, Rule 6(c) excludes freight and charges for delivery from the taxable turnover, though freight and charges for delivery are

separately itemised in Rule 6(c). The ratio of our judgment in Mettur Chemical and Industrial Corporation Ltd. v. State of Tamil Nadu [1976] 37

S.T.C. 288. (T.C. No. 427 of 1970), would apply, which means that the delivery charges, in cases where the contracts were for ex factory price,

have to be treated as part of the freight itself and, therefore, to be excluded from the taxable turnover. Following our earlier decision, we set aside

the orders of the authorities below so far as this item of Rs. 77,604.20 is concerned, and remit the matter to the assessing authority to give effect to

our decision after finding out the particular transactions where the ex factory prices are paid and charges for delivery are separately noted.

The second item of Rs. 63,913 related to consignment sales. The facts relating to this item are as follows: The petitioners sent these goods to

their agent Thiru Kalyanasundaram of Kumbakonam on consignment, who, in turn, with the knowledge of the petitioners, appointed one V.S.K.

Ganapathi Chettiar at Thiruvarur as his agent and sent the goods on consignment to him. The sales were effected by V.S.K. Ganapathi Chettiar of

Thiruvarur. In the return filed by Ganapathi Chettiar, he showed this turnover under the heading ""consignment sales of refined oil"" by him on behalf

of others and that turnover was taxed under the Tamil Nadu General Sales Tax Act. The same turnover was disclosed in the return filed by

Kalyanasundaram of Kumbakonam, who claimed exemption on the ground that they were consignment sales in respect of which his agent V.S.K.

Ganapathi Chettiar had paid the tax. This claim was admitted under Rule 6(h) of the Tamil Nadu General Sales Tax Rules and the said sales were

exempted from the taxable turnover. When the petitioners filed their return for 1966-67, they claimed exemption in respect of this turnover on the

ground that there was only one sale by V.S.K. Ganapathi Chettiar of Thiruvarur and that as he had paid the tax, the petitioners were not liable to

pay tax on that turnover. They also pointed out that in the assessment of their agent Kalyanasundaram of Kumbakonam, this turnover was not

taxed on the ground that his agent V.S.K. Ganapathi Chettiar had paid the tax. But the assessing officers and the Tribunal refused to accept this

contention on the ground that in terms, Rule 6(h) only permits a deduction from the gross turnover of sales in respect of which an agent has paid

the tax and it does not contemplate payment of tax by an agent to the agent or sub-agent. In this petition, the learned counsel contended that the

sub-agent V.S.K. Ganapathi Chettiar was appointed to the knowledge of the petitioners and, therefore, the intendment of the rule that, if a sale had

suffered tax at the hands of the agent, it should not be taxed in the hands of the principal, should be given effect to in this case. He further

contended that even if that was not to be accepted, the tax shall be deemed to have been notionally paid by their agent Kalyanasundaram of

Kumbakonam, since that turnover was included in the assessment and deducted as exempted turnover. The learned counsel also submitted that

even on general principle, there is only one sale, that is, by V.S.K. Ganapathi Chettiar and, therefore, there could be only one tax and not more

than one. We are in agreement with the learned counsel for the petitioners in his submission that there was a notional assessment and a notional

payment at the hands of Kalyanasundaram of Kumbakonam and, therefore, Rule 6(h), in terms, is applicable. In fact, we see from the order of

assessment relating to 1966-67 of Kalyanasundaram that this turnover of Rs. 63,913 was included in the gross turnover and he claimed deduction

on the ground that they were sales effected by him on consignment basis. That was accepted and he was also given exemption from payment of the

tax. This could be only on the basis that there was a notional sale by Kalyanasundaram and that sale is to be exempted from payment of the tax

because it has suffered tax at the hands of his agent. If that is so, we are of the view that the petitioners could not be asked to pay the tax on the

very same turnover which had already suffered tax. Even otherwise, we are of the view that the petitioners are entitled to the deduction of this

money on the basis that there was only one sale. Though this turnover is subject to multiple tax, unless there is a sale by the principal to his agent at

Kumbakonam and a further sale thereafter, the same transaction should not suffer tax twice. This court, in a case where it was a consignment sale,

when it was assessed in the hands of the principal, allowed exemption on the turnover at the hands of the agent, though strictly it would not be

covered by Rule 6(h) on the ground that there was only one sale. This was in the decision in Deputy Commissioner of Commercial Taxes,

Coimbatore Division v. Kothari Textiles Co-operative Stores Ltd. Infra. (T.C. No. 81 of 1968). The ratio of that judgment is clearly applicable to

this case and since it is not the case of the department that there was more than one sale and since it had already suffered tax in the hands of the

sub-agent V.S.K. Ganapathi Chettiar, it should not be taxed in the hands of the petitioners. We accordingly set aside the orders of the Tribunal so

far as this turnover is concerned. The petitioners will be entitled to their costs. Counsel''s fee Rs. 250.