TMI Blog1961 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.. In addition to this business, the opposite party was also selling the goods of the Textile Marketing Organization and the question arose as to whether he was liable to pay sales tax in respect of those sales. By his order dated the 11th February, 1960, the Additional Member, Sales Tax Tribunal, held that there was no "sale" as between the Textile Marketing Organization, on the one hand and the assessee on the other, in respect of those goods and that he was also not a commission agent of the Textile Marketing Organization. Hence he held that he was not liable to pay sales tax. Though the finding is not very clear it appears that the learned Tribunal was of the view that the assessee was merely an ordinary agent carrying on the business of the Textile Marketing Organization of selling its goods in Puri town and that in respect of those transactions he had no independent status. He relied on a decision of the Nagpur High Court in Kalyanji v. Tika Ram,A.I.R. 1938 Nag. 254. which has been followed in a Madras decision in Radhakrishna Rao V. Province of Madras[1952] 3 S.T.C. 121. 4.. The material facts found by the Tribunal are as follows: The Textile Marketing Organization us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n.-The manager or agent of a dealer who resides outside Orissa and who carries on the business of selling or supplying goods in Orissa shall, in respect of such business, be deemed to be a 'dealer' for the purpose of this Act." The said definition underwent a change, as a result of the passing of the amending Act of 1958 (Orissa Act 28 of 1958)In consequence of that amendment, the new definition ran as follows: "2(c) 'Dealer' means any person who executes any contract or carries on the business of purchasing or selling or supplying goods in Orissa, whether for commission, remuneration or otherwise, and includes a Department of the Government which carries on such business and any firm or Hindu joint family, and any society, club, or association which purchases goods from or sells or supplies to, its members; Explanation.-The manager or agent of a dealer who resides outside Orissa and who carries on the business of purchasing or selling or supplying goods in Orissa shall, in respect of such business, be deemed to be a dealer for the purposes of this Act". Thus, after the amendment, even a Department of Government run on commercial basis, may have to be registered as a dealer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business of the principal. The expression "agent" as defined in section 182 of the Indian Contract Act is very wide. It will include all classes of agents such as factors, brokers, commission agents etc., and may also include mere employees who, for commission or other kinds of remuneration, carry on the business of their masters. The distinction between the various classes of agents has been pointed out in Bowstead on Agency (Twelfth Edition) pages 1 to 4, and it is unnecessary to repeat it here. There are also certain classes of commission agents between whom and the principal the relationship is merely that of debtor and creditor, as pointed out in Kirkham v. Peel' (cited at page 103 of Bowstead on Agency). In Indian law also the definition of the expression "mercantile agent" as given in section 2(9) of the Sale of Goods Act and his right to pass title in the goods to third parties as provided in section 27 of that Act. shows that the main principles of English law of agency have been incorporated in Indian law. 8.. But if the expression "dealer" occurring in the main part of section 2(c) of the Orissa Sales Tax Act is so construed as to include any agent of the principal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Mahadayal v. Commercial Tax Officer[1958] 9 S.T.C. 428., where, in view of the express terms of the agreement between the principal (who was in Kanpur) and the agent (who carried on the business on behalf of the principal, in Calcutta), it was held that the agent had no authority, in the customary course of business, to sell the goods belonging to the principal and was therefore not a "dealer" within the meaning of the Bengal Finance (Sales Tax) Act. It is true that the assessee here has described himself as a "commission agent", in his statement before the lower Sales Tax Authority dated the 8th December, 1958. In his affidavit filed before this Court also he described himself as a "selling agent". But too much importance should not be attached to this description because the main question here is one of legal inferences to be drawn from proved facts. I am inclined to take the view that in selling the goods of the Textile Marketing Organization the assessee was not carrying on his own business, but the business of that Organization. His position was somewhat akin to that of an ordinary agent or employee who was remunerated on a commission basis. He had absolutely discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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