TMI Blog1957 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... tory of Gujerat. Now, certain mills in this Gujerat area situated at Kalol, Kadi and Petlad in the Bombay State had appointed the Kathiawar Coal Distributing Co. as their buying agents for coal. This company instructed the respondents to send to the respective mills coal required by them. This coal was despatched from the collieries direct to the mills; but the railway receipts were sent to the respondents together with the bills for the price of the coal. The respondents in their turn forwarded the receipts together with their own invoices to the Kathiawar Coal Distributing Co. and the latter company in its turn forwarded the receipts to the mills with their own invoices. The mills paid the amount of the invoices to the Kathiawar Coal Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the Tribunal to refer these questions to the Court nor in the Court to decide the same. We will deal with this contention later. Turning then to the first question, the ground on which the Tribunal took the view that there was no transaction of sale between the respondents and the Kathiawar Coal Distributing Co., is to be found under the provisions of the Colliery Control Order, 1945. The Tribunal took the view and, in our opinion, rightly that if the transaction that took place could have been carried out lawfully by all the parties concerned within the law, they should hold that it had been so carried out and they should not attribute to the parties a desire to carry out the transaction except in accordance with the law. It is from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as may be agreed upon." Then section 12E provides: "No person shall acquire or purchase or agree to acquire or purchase any coal from a colliery and no colliery owner or his agent shall despatch or agree to despatch or transport any coal from the colliery except under the authority and in accordance with the conditions contained in a general or special authority of the Central Government." Having regard to these provisions of the Colliery Control Order, the Tribunal took the view that the respondents were del credere agents for the consignors and they were not the sellers of the coal to the Kathiawar Coal Distributing Co. Now, it appears to us that this finding of the Tribunal is well-founded. Section 12E of the Order clearly provides tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupee per ton of coal each taking eight annas. In our opinion, the Tribunal was right in the conclusion they arrived at and our answer to the first question will be in the negative. Coming now to questions 2 and 3, the first question that we have to determine is whether these questions arise out of the order of the Tribunal. The relevant section under which a reference lies is section 23 of the Sales Tax Act, 1946. Sub-section (1) of this section is a verbatim reproduction of section 66(1) in the Income-tax Act and as a result of several decisions, it is well established in income-tax law that a new point or plea cannot be raised upon a reference except in one case and that is where no additional facts are necessary to support that point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal the respondent is a person who supplies goods for commission. Assuming for a moment that this submission was well-founded and the respondent was a dealer, yet his liability to tax would depend upon the person to whom the supply was made, because by virtue of section 6(3) certain supplies are exempt from taxation. Amongst such supplies are the supplies to a registered dealer holding a licence in respect of goods specified in such licence and certified by him as being intended for use by him in the manufacture or processing of any goods for sale or supply. Obviously if it was at any time urged that the respondents were dealers in that they supplied the goods, it would be open to the respondents to show that the supply was to the mills; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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