TMI Blog2004 (8) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Government of India which contains some terms and conditions concerning such sale of fertilisers through the petitioner-Corporation. So far the petitioner used to submit "nil" return regarding transaction of imported fertiliser contending that the petitioner was never owner of the imported fertiliser and had been merely carrying out Government of India's instructions as regards sale of fertiliser. But by suo motu revision, Assistant Commissioner (A.C.), Chowringhee Circle, held all the transactions regarding fertilisers made by FCI are taxable. Turnover of the petitioner was therefore revised to a higher figure. Against that, the petitioner went in revision before the West Bengal Commercial Taxes Tribunal which by judgment dated November 18, 1981 held that petitioner had no authority to sell fertiliser to private parties but regarding supply to Government of West Bengal (W.B.), the Tribunal ordered for a reassessment with the direction that if from basic records of the petitioner-Corporation, it is found that FCI could act independently in the matter of delivery of fertiliser and collection of money, it will follow that FCI had authority to sell. After rehearing, Commercial Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... West Bengal. The earlier Tribunal passed direction on the Commercial Tax Officer to decide afresh with reference to the basic records of the petitioner, in coming to a decision on the question as to whether the Corporation had authority to sell those goods. But no such basic record had been considered by the assessing authority or the appellate or revisional authority the Board. It is the further contention of the petitioner that the FCI discharges functions of a bailee and not of an agent. It is merely the caretaker of the fertiliser and it delivers as per order of the owners. In the supplementary affidavit filed by the petitioner subsequently, the petitioner contends that the fertiliser had never become stock or property of the petitioner either in purchase or sale column as per auditor's report dated February 3, 1972 filed along with the affidavit. In the said report, the transaction is not mentioned as sale or purchase. It is further contended that bills of lading annexed show under secretary to the Government of India, Ministry of Food and not the Food Corporation of India (FCI) as importer. So there can be no basis for the view taken by the Board that the petitioner imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated January 14, 1969. 6.. At the outset, we find that definition of "dealer" is to be found in section 2(c) of the Bengal Finance (Sales Tax) Act, 1941, which definition has been incorporated in the said Act by the West Bengal Act 5 of 1987 giving such definition retrospective effect from the date on which the original 1941 Act came into force. It has got to be interpreted in the background of the fact of this case in order to come to a decision. In this respect, we may note that when the judgment of the West Bengal Commercial Taxes Tribunal was delivered on November 18, 1981, the Explanation II of section 2(c) defining the "dealer", did not include within the description of the term "dealer", "an agent for handling or transporting of goods or handling of documents of title to goods". This portion as extra had only been introduced by amendment in 1987 with retrospective effect. We find that the definition clause of "dealer" consists of two parts, one part specifying what the expression defined "means" and the other part specifying what it includes. Such definition is normally is an exhaustive definition and not an enumerative one. As per the said definition, a person kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y missed a point for its inability to distinguish the fact of that case from the instant one. In that reported case, it was an admitted fact that the petitioner sold goods on its own behalf and also on behalf of 24 other principals on commission or agency basis. In that case concerned Tribunal held that assessment by including in its turnover of sale made as commission agent of 24 other principals was erroneous and so concluded that sales effected on behalf of other 24 disclosed principals as commission agents had to be assessed separately. But the honourable Supreme Court held that there is to be only one assessment on the agent in respect of the total turnover as agents of all types have been included in the definition of "dealer". That decision was given while deciding turnover tax under section 6B of the Act of 1941. In that reported case, therefore, we find that there was admission that the firm sold goods for the principal and they had authority to sell goods for the principal. Their authority to sell goods for the principal was not a question to be decided there. The Board then took the aid of the Sale of Goods Act, 1930, particularly section 27 to section 30 thereof to impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined any such basic record as directed by the Tribunal. He appears to have formed his own opinion and reached his conclusions mainly guided by the document dated January 14, 1969. His only examination is over the "issue vouchers", as it appears. His finding is that the "issue vouchers" raised by the FCI in the name of the State Government and Government bodies making them liable to pay the price for the quantity of fertiliser delivered are documents of sale and the value thereof are to be collected from the buyers through book adjustment for which accounts are to be maintained by the pay and accounts officer, Ministry of Food and Agriculture, New Delhi, on behalf of the Central Government and by the Accountant-General of respective States on behalf of the State Government. He also observed no sale document other than the "issue vouchers" was raised by the Government of India (principal) for realisation of the sale price of fertiliser sold to Government bodies. FCI's failure to produce any letter from Government of India debarring it authority to sell fertiliser to State Government or Government bodies also was considered as a positive point to reach the decision as arrived a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation II of the Act of 1941 and the decision rendered by the honourable Supreme Court in [1997] 105 STC 561; (1997) 30 STA 238 (State of West Bengal v. O.P. Lodha). The Board examined the clauses of the letter dated November 18, 1981 afresh particularly clause No. 3 regarding handling charge, clause No. 9 with regard to forwarding monthly sale account by FCI in the enclosed, proforma to the Pay and Accounts Officer, Ministry of Food and Agriculture, New Delhi, clause 13 regarding receipt of the bill of lading by Department of Food and subsequent transfer of the same by making of endorsement in favour of FCI and clause No. 14 regarding stock of gunny bags which taken as a whole, as per him, reflect that the FCI is nothing but an agent of the Central Government with authority to part with the property in the goods, i.e., fertiliser owned by the Central Government to State Government and Government bodies on the basis of release letter. 11.. But as we peruse the said letter dated November 18, 1981 we do not find that unfettered right had been given by the same to the petitioner in the matter of sale of fertiliser to Government or Government bodies. What type of fertiliser a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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