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TMI Blog1954 (5) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ibhit, against the judgment of the High Court of Allahabad granting firstly, a writ of certiorari quashing certain assessment orders made against the respondent, and secondly, a writ of prohibition in respect of certain other proceedings for assessment of tax under the provisions of the U.P. Sales Tax Act (Act XV of 1948). The respondent is a firm doing business in forward contracts, and was assessed in respect of such contracts to a tax of Rs. 1,082-8-0 for the year 1948-49 by an order dated 27th February, 1950, Exhibit A, and to a tax of Rs. 7,369 for the year 1949-50 by an order dated 23rd May, 1950, Exhibit B. For the period, 1st April, 1950, to 31st January, 1951, the respondent paid a sum of Rs. 845-4-0 as tax. Assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the power to impose a tax on the sale of goods under Entry 48 includes a power to impose a tax on forward contracts. Under the statute law of India which is based on English law on the subject, a sale of goods and an agreement for the sale of goods are treated as two distinct and separate matters. Section 4 of the Indian Sale of Goods Act (Act III of 1930) runs as follows: "(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another. (2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer". Section 79 enacted that, "Where there is a contract for the sale of a thing which has yet to be ascertained, made or finished, the ownership of the thing is not transferred to the buyer, until it is ascertained, made or finished." The corresponding provisions of the English Act are Sections 1, 16 and Rule 5 of Section 18. Section 1 is as follows: "(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part-owner and another. (2) A contract of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contract. The position is thus stated in Halsbury's Laws of England, Volume 29, page 15, para 13: "An agreement to sell, or, as it is often stated, an executory contract of sale, is a contract pure and simple, whereas a sale, or, as it is called for distinction, an executed contract of sale, is a contract plus a conveyance. Thus, by an agreement to sell a mere jus in personam is created, by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default in payment, the seller may sue for the contract price, but where an agreement to buy is broken, usually the seller's only remedy is an action for unliquidated damages. Similarly, if an agreement to sell be broken by the seller, the buyer has only a personal re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods, as provided in Explanation I. The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well-settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell, then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods. The law was thus stated in Colley v. Overseas Exporters [1921] 3 K.B. 302 at 309, 310.: "In former days an action for the price of goods would only lie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a day certain irrespective of delivery, and that is not material for the purpose of the present discussion. The position therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as sale price. The power conferred under Entry 48 to impose a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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