TMI Blog1959 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... sain and Sons v. Commissioner of Income Tax, U.P[1957] 31 I.T.R. 231. in support of his contention, but the High Court of Bombay in Abdul Aziz Ansari v. The State of Bombay) [1958] 9 S.T.C. 135. referred to rule 42 of the Bombay Sales Tax (Procedure) Rules, 1954, which casts an obligation on this Tribunal to supply a copy of its order to the applicant or to a person affected thereby and to the officer whose order forms the subject-matter of the proceedings, and observed as follows: "Since the decision is not given in the presence of the parties, there being a requirement that the order shall be communicated to the parties, time for presenting an application for reference to the High Court does not begin to run until the copy is supplied to the party aggrieved". In this case we no doubt informed the parties at the time of the hearing the gist of the order that we proposed to make, but the order, with the reasons supporting it, was communicated only after a fair copy of the order had been type-written and signed by the members of the Tribunal. Simply from the announcement made to the parties at the time of the hearing of the kind of order that was going to be made, it was not possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time was in respect of the weight of gold only, no conversion of gold into the price or into cash for the purpose of settlement being ever made nor was any bill submitted to the customers, and no party was debited with the price of the ornaments, nor were the rates of majuri, which were common to the whole trade, moved up and down with the fluctuations in the price of gold. This type of business had been in vogue in the whole of the trade since time immemorial. 5.. The Additional Collector of Sales Tax held that in cases where the gold was brought by the customers and the ornaments made out of it there were no sales, but that in those cases in which this practice had been "abandoned ", that is, where the opponents had used gold out of their own stock for a customer, there had been a sale of the finished article and that to the extent of such transactions the opponents should be treated as dealers. 6.. In support of this contention Mr. A.M. Khory for the State relied on the case of Jayarama Chettiar In re[1948] 1 S.T.C. 168.We were unable to rely on this decision. We thought on the other hand that the principle applicable would be found rather in the case of P.A. Raju Chettia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the gold which was received back in such cases from the customers represented a part of the price. In our opinion, therefore, the view taken by the Additional Collector that such transactions were sales was erroneous. We, accordingly, allowed the appeal and set aside the order of the Additional Collector holding that the opponents were not dealers and that such transactions did not amount to sales. 7.. The applicant has proposed the following questions for reference to the High Court. "(i) Whether the supply of ornaments by the respondents to their customers, manufactured from the gold belonging to the respondents themselves, in return for gold subsequently supplied by their customers is a 'sale' within the meaning of section 2(13) of the Bombay Sales Tax Act, 1953? (ii) If question (i) be answered in the affirmative, whether the respondents are 'dealers' within the meaning of section. 2(6) of the Bombay Sales Tax Act, 1953?" We think that question No. 1 should be put rather as follows: "Whether on the facts and in the circumstances of the case the transactions sought to be taxed amounted to sales within the meaning of section 2(13) of the Bombay Sales Tax Act, 1953?" We think ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rojmel. The rojmel or cash book shows the majuri or labour charges received and the expenses incurred by the opponents from day to day. The case which the opponents intended to make out in that application was set out in some detail. According to the opponents, there are well-known firms of jewellers and goldsmiths in Bombay who give majuri or labour work to the opponents for manufacture of gold ornaments from gold supplied by those merchants. In certain cases, the opponents advanced their own gold to their clients and gold of an equivalent weight was received subsequently from the clients, i.e., after the work of preparing the ornaments was done. In some cases, the gold was given before the ornaments were made and in some cases after the ornaments were made. The opponents did maintain certain quantity of gold in their own shop in order to meet with this situation. In S. Y. 2012 the opponents did not purchase any gold at all nor did they stock any ready-made ornaments for sale; nor did they sell any bullion. The accounts with their customers were settled by them from time to time and it is to be noticed that no price of the ornaments prepared was agreed upon in the case of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re submitted by learned counsel. Now, the initial difficulty of Mr. Banaji is that at no time does it appear to have been the case of the Department that the transactions were any different from what they ostensibly purported to be. There was no suggestion whatever that the transactions were simply intended to disguise what in reality were sales of gold ornaments. That being the position taken up by the Sales Tax Department before the taxing authorities as well as the Tribunal, it is extremely difficult to see how Mr. Banaji can hope that we can accept his line of reasoning and argument. The questions must be answered on the facts and findings on the same recorded by the Tribunal and set out in the statement of the case, and the facts and findings as they appear on the record of the case do not permit of any such contention. Learned counsel has also argued that the definition of sale in the Act is very wide and includes a sale of goods for cash as well as other valuable consideration and the argument has been that in a case when gold was returned by the customer or constituent after the ornaments were manufactured and delivered, the transaction in law would be one of sale, althou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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