Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeals Nos. 929 and 2402 of 1950

Judges

Rajamannar, C.J
Rajagopala Ayyangar, J.

Acts

General Sales Tax Act,
rule 5(1)(h)

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Smart Summary

Judgement Summary — Rajamannar, C.J.

Factual and Procedural Background

This opinion arises from two second appeals originating from O.S. No. 112 of 1947 before the Subordinate Judge of Coimbatore. The plaintiff is a registered partnership firm of jewellers trading in gold and silver bullion and specie in Coimbatore. For the year 1944–45 the Deputy Commercial Tax Officer assessed the plaintiff to sales tax on turnovers for the main shop and a branch shop. The plaintiff appealed to the District Commercial Tax Officer and applied for revision to the Board of Revenue; there was a partial reduction in assessable turnover.

The plaintiff alleged that, as per the Board of Revenue's final orders, certain amounts in respect of the branch and main shop had been wrongly assessed, amounting in turnover to Rs. 2,99,539-4-9 and in tax to Rs. 2,995-6-3, and brought suit to recover the tax wrongfully collected. The turnover sum in dispute comprised three items:

Two amounts representing the value of silver bullion supplied to Kumbakonam manufacturers: Rs. 1,13,967-9-6 (branch) and Rs. 61,837-12-0 (main).
Rs. 20,822-9-3 alleged to have been wrongly included in the branch shop's turnover.
Rs. 1,02,911-6-0 representing the value of stock on hand in the branch as at 31 July 1944, where a new partner (V.R.M. Ramalingam Chettiar) joined the silver business as of 1 August 1944.

The Government denied liability to refund and defended the sales tax assessments. The Subordinate Judge found item (2) wrongly included (and allowed recovery of the tax on that sum) but rejected the plaintiff's claims as to items (1) and (3). The District Judge agreed with the Subordinate Judge on item (1) but reversed on item (3), holding that the transfer to the new partnership did not amount to a sale. Both parties appealed: the plaintiff appealed the finding on item (1) (S.A. No. 929 of 1950) and the Government appealed the finding on item (3) (S.A. No. 2402 of 1950).

Legal Issues Presented

Whether the supplies of silver bullion by the plaintiff to manufacturers at Kumbakonam were "sales" within the meaning of the General Sales Tax Act and thus assessable to sales tax, or whether they were supplies of raw material given for conversion (bailment) for wages only.
Whether the sum of Rs. 20,822-9-3 was wrongly included in the turnover of the branch shop (this was decided in the courts below in the plaintiff's favour).
Whether the transfer of stock on hand (valued at Rs. 1,02,911-6-0) to a new partnership constituted a "sale" by the plaintiff firm and was therefore includible in turnover and subject to sales tax.

Arguments of the Parties

Plaintiff's Arguments

The transactions with Kumbakonam manufacturers were not sales; they were supplies of raw material (silver bullion) for conversion into finished articles for wages only. The manufacturers were bailees, not purchasers.
The account books showed that the Kumbakonam merchants were debited and credited in weight (tolas) rather than in monetary price; no cash price for the silver supplied appeared in the accounts.
As to the transfer of stock on 1 August 1944, the plaintiffs contended that the deed of partnership and the circumstances did not amount to a sale of goods by the plaintiff to the new partnership, and therefore the value of stock could not be included in turnover for sales tax purposes.

Government's Arguments / Respondent's Position

The Government denied liability to refund and justified the sales tax authorities' decision to include all three contested items in the plaintiff's assessable turnover.
Specifically, the sales tax authorities treated the supplies of silver to the Kumbakonam merchants as sales and treated the transfer of stock to the new partnership as a sale of business assets (or at least a transfer taxable as turnover).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analyses the three disputed items separately and explains its conclusions as follows.

Item 1 — Supplies to Kumbakonam manufacturers

The court examined the accounting treatment and evidence: the Kumbakonam merchants were debited and credited in weight (tolas) for silver; there was no entry showing a cash price for the silver supplied; balances were struck in weight, not converted into cash.
On these facts the court concluded there was no evidence of sales of silver bullion. The relationship was one of bailment: there was no transfer of property in the silver and no cash or other consideration constituting a sale.
The court rejected the District Judge's view that the plaintiff had to show a transaction-by-transaction tally of silver supplied and finished articles. Instead, the practice of periodic supplies and periodic adjustments in weight (rather than price) sufficed to show the absence of a sale.
The court addressed and discounted an apparently misread statement of a witness (P.W.2) about the non-maintenance of a separate wages account, explaining that that statement related to ready-made articles made with the firm's own metals and did not bear on the nature of the Kumbakonam transactions. Evidence of wages/making charges being paid to the manufacturers was present in the account books.
The court further noted that references by the District Judge to assessments of the Kumbakonam merchants lacked evidential foundation in the record and thus did not bear on whether the transactions in question were sales by the plaintiff.
Conclusion: The court found as a matter of fact and law that the supplies were not sales under the General Sales Tax Act and therefore could not be assessed to sales tax; accordingly the plaintiff's appeal on this point (S.A. No. 929 of 1950) was allowed.

Item 3 — Transfer of branch stock on formation/alteration of partnership

The court described the August 1944 arrangement: a new partner (the manager of the silver business) was taken in respect of the silver business alone; the partnership deed recited that the balance of assets and liabilities, stocks and staff according to a balance sheet ending 31 July 1944 were taken over by the new partnership.
Even assuming the new partnership was a separate legal entity, the court found there was no transfer of goods for consideration by the plaintiff to that partnership, nor was the transaction a transfer in the course of the plaintiff's trade or business.
The partnership deed indicated that the new partner had no right or interest in firm properties other than a share in profits and losses; if any transfer occurred it was effectively a transfer by partners to themselves rather than a sale to a third party.
On that basis the court concluded the transaction did not fall within the Act's definition of "sale" and therefore the sales tax authorities erred in including the sum Rs. 1,02,911-6-0 in the plaintiff's turnover. The court thus dismissed the Government's appeal (S.A. No. 2402 of 1950) on this point.
The court expressly stated it was unnecessary to decide the applicability of rule 5(1)(h) of the Turnover Rules (an exemption provision) because it concluded there was no sale in any event.

Item 2 — Sum of Rs. 20,822-9-3

This item had already been found by the Subordinate Judge to have been wrongly included in the turnover and the suit was partly decreed below in respect of that sum (recovery of the tax on that amount). The present opinion does not re-open that finding and proceeds on the basis that item (2) was already properly allowed to the plaintiff below.

Holding and Implications

Holding: The court allowed the plaintiff's second appeal in S.A. No. 929 of 1950 (concerning the supplies to Kumbakonam) and dismissed the Government's second appeal in S.A. No. 2402 of 1950 (concerning the transfer to the new partnership). The plaintiff's suit was decreed as prayed for, with costs throughout.

Implications:

Direct effect on the parties: The court held that the contested supplies of silver to the Kumbakonam manufacturers were not sales assessable to sales tax and that the transfer of branch stock on the reconstitution/formation of the new partnership did not amount to a sale; the plaintiff's claim succeeded and the suit was fully decreed with costs.
The opinion did not purport to create or announce a broader precedent beyond the application of the statutory definition of "sale" to the facts before the court. The court did not set out a novel legal rule beyond its factual conclusions that (a) absence of transfer of property and absence of consideration indicate absence of sale, and (b) transfers between partners to themselves do not constitute a sale within the Act.

Judge: Rajamannar, C.J. (per the opinion text)

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P.A Raju Chettiar And Brothers v. The State Of Madras.

Rajamannar, C.J:— These two second appeals arise out of a suit, O.S No. 112 of 1947, on the file of the Court of the Subordinate Judge of Coimbatore, brought for the recovery of a sum of Rs. 2,995-6-3 alleged to have been wrongfully collected as sales tax. The plaintiff is a registered partnership firm carrying on business as jewellers and merchants in gold and silver bullion and specie in Coimbatore. For the year 1944-45, the Deputy Commercial Tax Officer, Coimbatore, assessed the plaintiff firm to sales tax on a turnover of Rs. 51,22,169-12-3 in respect of the plaintiff's main shop and a turnover of Rs. 5,27,890-0-3 in respect of the plaintiff's branch shop dealing with silver. There was an appeal by the plaintiff to the District Commercial Tax Officer and applications in revision to the Board of Revenue at Madras. There was a partial reduction in the assessable turnover. The plaintiff alleged that as per the final orders of the Board of Revenue a sum of Rs. 1,34,790-2-9 in the turnover of the branch shop and a sum of Rs. 1,64,749-2-0 in the turnover of the main shop, making a total of Rs. 2,99,539-4-9 had been wrongly assessed to a tax amounting to Rs. 2,995-6-3. It is for the recovery of this amount of sales tax alleged to have been wrongfully collected that the suit was instituted. The total sum of Rs. 2,99,539-4-9 comprised three items in dispute:

1. Rs. 1,13,967-9-6 and Rs. 61,837-12-0 being the value of silver bullion supplied from the branch shop and the main shop respectively to certain manufacturers of silverware and silver jewellery at Kumba-konam for being made into finished ware. The said supplies of silver were treated by the sales tax authorities as sales of bullion by the plaintiff firm to the Kumbakonam merchants. The plaintiff's contention was that the transactions were not sales at all within the meaning of the term “sale” in the General Sales Tax Act, but were only supplies of raw material for conversion into finished products for wages only.

2. A sum of Rs. 20,822-9-3, alleged to have been wrongly included in the turnover of the branch shop.

3. A sum of Rs. 1,02,911-6-0 being the value of the stock on hand in the branch shop of the plaintiff firm on 31st July, 1944. On and from 1st August, 1944, one V.R.M Ramalingam Chettiar was taken as an additional partner in respect of the branch business alone, in accordance with the terms of a deed of partnership executed on 2nd August, 1944. It was recited in this partnership deed that the balance of assets and liabilities, stocks and the staff etc., according to the balance sheet account ending with 31st July, 1944, in the business conducted by the plaintiff firm were taken possession of by the new partnership, which included Ramalingam Chettiar and commenced to do business under the name and style of P.A Raju Chettiar and Brothers, Silver Department, as and from 1st August, 1944. The sales tax authorities decided that the transaction amounted to a sale by the plaintiff firm, to the new partnership, and therefore included the said amount in the turnover of the plaintiff firm. The plaintiffs contend that this was wrong. The Government denied liability to refund any part of the amount claimed, and justified the decision of the sales tax authorities in respect of all the three items. The learned Subordinate Judge of Coimbatore who tried the suit found that the second item of Rs. 20,822-9-3 was wrongly included in the turnover but negatived the plaintiff's claim in respect of the other two items. The suit was, therefore, decreed partly for a sum of Rs. 208, being the tax collected on the said sum of Rs. 20,822-9-3. Otherwise the suit was dismissed. The Government accepted the decision of the Subordinate Judge, but the plaintiff filed an appeal in respect of the two items disallowed. The learned District Judge agreed with the Subordinate Judge as regards the first item, namely, the supply of silver to the Kumbakonam merchants but differed from him as regards the third item. He held that the transfer of assets and liabilities by the plaintiff firm to the new partnership did not amount to a sale. In the result, he allowed the appeal in part in so far as it related to the third item and dismissed the appeal otherwise. Against this decree and judgment of the learned District Judge, both the plaintiff and the Government have preferred the above second appeals. In S.A No. 929 of 1950 filed by the plaintiff the findings of the courts below as regards the first item are impeached, while in S.A No. 2402 of 1950, the Government attack the finding of the District Judge as regards the third item.

2. Taking up item 1 first: The facts which emerge from the evidence on record relating to the nature of the transactions between the plaintiff firm and the Kumbakonam manufacturers are as follows: The plaintiff firm supply silver bullion of varying weights from time to time to the manufacturers of silverware and silver jewellery at Kumbakonam, and in the accounts the Kumbakonam merchants are debited the weight of such silver in tolas. And when finished articles are received from the Kumbakonam manufacturers, they are credited with the weight of the finished articles. The manufacturers are credited with the wages or making charges from time to time, that is, when the finished articles are received, and are debited when they are paid in cash. On looking into the original account books, there is no room for doubt on the matter. The columns relating to silver are headed as “credits and debits relating to silver weight”. (The words “silver” and “weight” are missing in the official translation).

3. The Kumbakonam manufacturers are never debited in cash representing the price of the silver supplied. There is no indication of the price anywhere. Periodically, balances are struck in respect of silver but only in weight. Even then, there is no conversion of the balance into cash calculated at a price. On these facts, it is impossible to hold that there have been any transactions of sale of silver bullion by the plaintiff firm to the Kumbakonam manufacturers. The manufacturers are really in the position of bailees. There is no transfer of the property in the silver supplied to them. There is no cash or other consideration either. The learned District Judge considered that before the plaintiff's case could be accepted, it must be shown that the articles manufactured tally with the silver supplied, or that transaction by transaction the silver that was supplied by the plaintiff was accounted for or was otherwise adjusted. This, in our opinion, is not necessary. The practice appears to have been for the plaintiff firm to go on supplying from time to time silver in varying quantities and the manufacturer to send from time to time the finished articles. There was, of course, adjustment periodically but purely in weight, that is, between the weight of the silver supplied and the weight of the finished articles. The learned District Judge also erred in thinking that charges or wages as such were not shown to be paid by the plaintiff to the Kumbakonam manufacturers. The account books furnish clear evidence of such payment. No significance need be attached to the fact that the Kumbakonam manufacturers sometimes would give articles of greater or less weight than the silver supplied by the plaintiff firm. We may also point out that the learned District Judge has misread the evidence in one particular. The learned Judge refers to the following statement in the evidence of P.W 2:—

“No wages account used to be maintained separately which would show the charges made and wages paid.”

4. This statement has no bearing whatever on the issue with which we are dealing. P.W 2 made that statement in connection with sales of the articles made by them (the plaintiff firm). The following extract will explain the proper context of the said statement:—

“We had ready-made articles also made with our own silver and gold. The wages account was not maintained separately to show the charges made to customers and wages paid for our own articles.”

5. This may be read with the following part of the evidence of P.W 1. the accountant in the plaintiff firm:—

“We also make silver articles in our shop and sell. If customers give their silver or gold we make articles or ornaments. We use our own silver and gold and sell the articles and ornaments. We collect cooly charges if a customer gives gold but we pay the workmen monthly wages both for making from customers' gold and also our own gold. The wages are not separately noted. The wages are noted down as consolidated. No separate account is maintained as regards the charges and wages.”

6. The learned District Judge also makes a reference to the assessment of the Kumbakonam merchants to sales tax. In the absence of any evidence on this point, we are unable to understand exactly how and why they were assessed to tax and in respect of what transactions. None of the circumstances mentioned by the learned District Judge has any material bearing on the question. We are clearly of opinion that there were no sales of silver bullion by the plaintiff firm to the Kumbakonam merchants which were assessable to sales tax. The second appeal (No. 929 of 1950) is allowed.

7. We are also of opinion that the appeal by the Government (No. 2402 of 1950) in respect of the third item should fail. What happened in August 1944 is clear. In respect of the silver business of the firm, a new partner was taken. He happened to be the manager of the plaintiff firm in charge of the silver business. Even assuming that the new partnership consisting of Ramalingam Chettiar also was an entity different from the plaintiff firm, we do not think that there has been any transfer of goods for consideration by the plaintiff to the new partnership. Nor can we speak of the transaction as a transfer made in the course of the trade or business of the plaintiff firm. There is the further fact that the deed of partnership makes it clear that the new partner, Ramalingam Chettiar, had no right to, or interest in, any of the properties belonging to the firm, and that he was only concerned with the profits and the losses. If there was a transfer, it was by the partners of the plaintiff firm to themselves. Such a transfer would not obviously be a sale within the meaning of the definition in the Act. In this view, it is not necessary for us to consider the applicability of rule 5(1)(h) of the Turnover Rules under which “all amounts realised by the sale by a dealer of his business as a whole is exempted from sales tax”. We agree with the learned District Judge that there was no transaction which amounted to a sale and the sales tax authorities were wrong in including a sum of Rs. 1,02,911-6-0 in the turnover of the plaintiff firm. The second appeal is dismissed.

8. In the result, the plaintiff's suit is decreed as prayed for with costs throughout.

P.A Raju Chettiar And Brothers v. The State Of Madras.

Judgement Summary — Rajamannar, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Government's Arguments / Respondent's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Item 1 — Supplies to Kumbakonam manufacturers

Item 3 — Transfer of branch stock on formation/alteration of partnership

Item 2 — Sum of Rs. 20,822-9-3

Holding and Implications

P.A Raju Chettiar And Brothers v. The State Of Madras.

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