TMI Blog1952 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter specifically and independently referred for determination under Section 19 of the Act. The Sales Tax Commissioner's decision must, without doubt, be deemed to be an appellate decision against the original order of the Assistant Sales Tax Commissioner, in spite of the fact that the Sales Tax Commissioner preferred to treat, what was obviously an appeal, as a reference under Section 19 of the Sales Tax Act. The order of the Sales Tax Commissioner, being an order passed in appeal, is final (or non-appealable) under sub-section (4) of Section 22 of the Sales Tax Act but is subject to revision by the Board of Revenue [sub-section (5) of Section 22 ibid]. This appeal is accordingly being treated as a revision application against the order of the Sales Tax Commissioner. 2. The applicant is a proprietor of a drug-store-cum-dispensary known as "Dixit Medico Surgical Hall, Durg." On both August, 1947, he put in an application in Form I for registration under Section 8 of the Madhya Pradesh Sales Tax Act, 1947, to the Sales Tax Officer, Durg. A certificate in Form II was accordingly issued on 28th August, 1947. The applicant paid sales tax amounting to Rs. 458-3-6 for the first qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... His certificate is not liable for cancellation and his claim for refund does not stand. For his failure to submit return you may serve him with a notice in Form XII under rule 32 and assessment done under Section 11(4) of the Act." A copy of this memorandum was forwarded to the applicant by the Sales Tax Officer with a direction to furnish a return in Form IV for the periods from 1st January, 1948, to 31st March, 1948, and 1st April, 1948, to 30th June, 1948, after crediting the sales tax for these quarters. It was also made clear to the applicant that the communication received from the Assistant Sales Tax Commissioner also disposed of his applications for a refund of the tax already paid by him. 4. Against the order dated 12th July, 1948, of the Assistant Sales Tax Commissioner, Jabalpur, the applicant filed an appeal before the Sales Tax Commissioner who held that the applicant was a "dealer" as defined in Section 2(c) of the Act and was liable for registration and had been rightly registered and asked to pay the tax. 5. The main grounds urged on behalf of the applicant are as follows: (i) The applicant is the sole proprietor of the medical store which is his exclusive pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m there that they are issued to customers either in packed condition or loose (1) (1946) I.L.R. (1946) 2 Cal. 425; 1 S.T.C. 157. (2) 89 L.J.R. 55. and are charged for in the bills. In the application in Form I put in by the applicant on 10th August, 1947, business in the concern is described as mainly for retail distribution and partly for "manufac- turing". Against side-head 8(b), patent medicines are shown as being purchased for "resale". In paragraph 2 of the application the applicant has given the names his three brothers as his partners in business. In paragraph 4 of his application dated 7th April, 1948, the applicant has clarified that his brothers are entitled to a percentage of profit in the business and, as is clear from his letter dated 17th May, 1948, they actually receive an annual remuneration of Rs. 1,000 each for working in the concern. All these facts clearly indicate that the so-called "Medico Surgical Hall" is largely a business concern, from which medi- cines are sold and that it cannot be classed purely as an ordinary dispensary run by a medical practitioner, in which medicines are only prescribed and dispensed. 8. It will be clear from the facts stated above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above ruling and are liable to be classified as "transactions of a dealer" as explained in paragraph 8 above, do not lose their essential character of "sales" simply because the proprietor of the con- cern happens to be a medical practitioner. Such sales are clearly liable to be taxed. The concession extended by Government can legitimately be claimed only in respect of transactions, which are not "transactions of a dealer" according to the criteria laid down in paragraph 8. 11. With reference to (b) in paragraph 9, the crucial section is Section 4(I), which reads as follows: "4 (1). Every dealer whose turnover during the year preceding the commencement of this Act exceeded the taxable quantum shall be liable to pay tax in accordance with the provisions of this Act.................................................." In view of the admitted fact that patent medicines are sold from the "Medico Surgical Hall", there is no doubt that the applicant's concern is a "dealer" within the meaning of Section 2(c) of the Act in respect of transactions which are liable to be classified as those of a dealer according to the criteria laid down in paragraph 8. The next point to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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