TMI Blog1963 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... he correctness of the view taken by the High Court. We find it enough to proceed on the assumption that the view for which the respondent contends that the agreement creates an agency is correct for even so, for the reasons earlier mentioned, it must be held that the respondent is not entitled to exemption under section 9 as it is not an agent of the kind contemplated by the section. We leave the question of the proper interpretation of that agreement for decision at a later stage when the question properly arises. - C.A. Nos. 792, 793, 794 of 1962, - - - Dated:- 26-11-1963 - SARKAR A.K., HIDAYATULLAH M. AND SHAH J.C. JJ. P. Govinda menon and Dr. V.A. Seyid Muhammad, Advocates, for the appellant (in all the appeals). S.T. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of kerosene on commission and on that basis claimed exemption under section 9. The appellant-State said that the agreement was one for sale of kerosene to the respondent. It is agreed that if under that agreement the respondent had purchased the kerosene from Caltex (India) Ltd., as an owner, then the sales by it of the kerosene could not have been on behalf of Caltex (India) Ltd., as its agent and it would not be entitled to exemption under section 9. The first question, therefore, to which the authorities below addressed themselves, apparently with the consent of the respondent, was whether under the agreement of June 1, 1952, the respondent was a purchaser of the kerosene from Caltex (India) Ltd. The first authority, the Sales Tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the licence. In these circumstances, the cases have to be remanded; adjudications of the other questions become unnecessary. Nor it should be disputed that should the petitioner be really a purchaser, any erroneous view earlier entertained by the taxing department when renewing the licences would not preclude the State from cancelling them, after it had been correctly apprised of the correct position. The decisive issue in these revision petitions, therefore, is whether the agreement, on a fair reading of all its terms, be really one of agency; which, in other words, means the necessity to decide how far the taxing authorities and the Appellate Tribunal have correctly held it to be of sale." The High Court, therefore, answered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption under section 9. It has to be remembered that the question of construction arose in order only to decide whether the respondent was entitled to exemption under that section. Now let us assume that the respondent is right and that under that agreement it obtained the kerosene for sale by it as agent for Caltex (India) Ltd. That alone however would not entitle it to the benefit of section 9. No doubt, in order to get exemption the respond- ent has to show that its sales were actually in accordance with the terms of the licence which had been granted under the section. That investigation has not yet been made and it was not found necessary to do so in the view that the authorities took. But quite apart from that it is not any and eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement-it could not sell expressly on behalf of its principal. Under the section it has to have the right under its agency agreement to sell expressly on behalf of known principals and this it did not have. If it did not have that right, it could not get the benefit of section 9. Therefore even if the respondent was an agent of Caltex (India) Ltd. for the sale of kerosene, it would not be entitled to the exemption under section 9 in view of the terms of its agency agreement. Learned counsel for the respondent contended that clause 8 was only a pious declaration and that if it was held that the agreement created an agency, that clause could not be given effect to for then it would be in conflict with the creation of an agency. We are unab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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