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TMI Blog1970 (1) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... sales of "green ginger" conducted by the commission agents. It appears with regard to those sales conducted by the commission agents they were assessed and tax was collected on the sales of "green ginger". The present tax revision cases relate to the assessments of the principal firm. In the returns filed by the firm in the total turnover were shown the sales of "green ginger" conducted both directly by the firm and those conducted by the commission agents on behalf of the firm. But, however, with regard to the turnover relating to the sales conducted by the commission agents deduction was claimed from the total turnover. Before the assessing authority the firm claimed exemption from paying tax on the sales of "green ginger" on the ground that "green ginger" is a vegetable and payment of tax was exempted by the Government on the transactions of vegetables. The claim of the firm that "green ginger" is a vegetable was negatived by the assessing authority and accordingly assessed the sale transactions of "green ginger" also. In the appeals preferred by the firm to the Assistant Commissioner of Commercial Taxes, the firm pressed for the same exemption. The Assistant Commissioner of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessments of which alone were set aside. It is against this order that the firm has preferred T.R.C. Nos. 27 and 29 of 1966. As already stated earlier, the commission agents were separately assessed on the sales conducted by them and tax was collected and they have not preferred any appeals questioning the correctness of the levy of tax and their assessments have become final. Notwithstanding that, it is the claim of the firm that it is entitled to claim refund of the tax paid by its commission agents in its assessments. It is this question which is common to all these five tax revision cases. The additional case of the assessee with regard to T.R.C. Nos. 27 and 29 of 1966 is that as provided under rule 50 of the Andhra Pradesh General Sales Tax Rules, the Tribunal is empowered only to rectify clerical or arithmetical mistakes apparent from the record and what was done by the Tribunal in the review petitions is not merely rectification of any clerical or arithmetical mistakes but it has gone into the merits of the case and therefore it is not sustainable and on that ground also those two cases should be allowed. We do not think that this second question involved in T.R.C. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e turnover of the principal being below the minimum turnover specified in sub-section (1) of section 5 and where the agent has paid the tax or penalty in respect of such transaction of sale or purchase effected by him and where the principal would be otherwise liable to pay the said tax or penalty, the agent may retain, out of the moneys payable to the principal, a sum equal to the amount of tax or penalty so paid by him. In the proviso it was provided that the tax or penalty assessed or levied on, or due from the agent, may be recovered by the assessing authority from the principal instead of from the agent only if the principal is liable to pay the said tax or penalty. It was further laid down in the explanation under that section that for the purposes of that section "agent" shall have the meaning assigned to the expression "dealer" in sub-clause (iv) of clause (e) of sub-section (1) of section 2. Therefore, as provided under section 11 with regard to a transaction of sale or purchase effected by an agent the primary responsibility to pay the tax or penalty due under the Act is that of the agent and not that of the principal. The agent was also brought within the definition of " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amachandra Reddy, the Principal Government Pleader, has argued that as provided under section 11 of the Act the agent by himself is a dealer and the primary responsibility for payment of tax on the transactions effected by him, though on behalf of the principal, is his and not of the principal and if the agent was assessed to tax and he paid the tax without questioning the assessment made by the assessing authority and when that assessment became final it is not open to the principal in his assessment proceedings relating to the transactions effected by him directly to claim refund of the tax which was wrongly paid by the agent and which he did claim by way of refund or question the assessment order passed by the assessing authority. Sri Ramachandra Reddy relied on the provision made under section 33 of the Act in support of his contention where it was provided that the liability of the assessing authority to refund any tax is only to the assessee in whose assessment any excess of the tax was collected. In support of his contention Sri Veerabhadrayya, the learned counsel for the assessee has placed reliance on a decision rendered by a Bench of this court consisting of P. Jaganmoha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him and where the principal would be otherwise liable to pay the said tax or penalty, the agent may retain, out of the money payable to the principal, a sum equal to the amount of tax or penalty so paid by him and also that the assessing authority may also recover from the principal instead of from the agent only the tax or penalty assessed or levied on or due from the agent if the principal is liable to pay such tax or penalty. As between the agent and the principal the agent may be entitled to recover the tax or penalty paid by him on behalf of his principal and the assessing authority can also recover from the principal the tax or penalty assessed or levied on, or due from the agent . But as already mentioned, under the provisions of the Act the agent himself is a "dealer" whose responsibility is to pay the tax according to the charging section, namely, section 5 of the Act and according to section 11 of the Act though the liability of the principal to pay the tax or penalty is there, the primary responsibility to pay the tax or penalty is that of the agent. It may be true that for a convenient mode of collection of tax the agent was made responsible primarily for payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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