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TMI Blog2008 (8) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... er has been set aside by the first appellate authority. Shri Om Prakash Tripathi, secretary of the society appeared before the assessing officer who stated that coal was imported from outside the State of U.P. and it was supplied to its members. Purchase vouchers, supply memo form XXXI and register of C form were maintained. The assessing authority found that the dealer-opposite party has not properly maintained the account books. The contract, if any, with the persons who have purchased the coal, has not been filed. The disclosed turnover, in the absence of proper and accurate account books, was rejected and best judgment assessment order was framed. While doing so, the assessing officer added the cost of "inward freight" towards the price of coal. In appeal, the appellate authority held that the dealer-opposite party is a registered society under the Societies Registration Act and it has supplied coal to its members on "no-profit no-loss basis", the goods were imported through rail. The "inward freight" in view of the judgment of the apex court in the case of Vinod Coal Syndicate v. Commissioner of Sales Tax [1989] 73 STC 317; [1988] UPTC 218 will not form part of the turnover. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler-opposite party, does not create a relationship of agent and principal. In the present case, there is no evidence on record to show even prima facie the relationship of principal and agent in between the dealeropposite party, the society and its members, the ultimate consumers of coal. There is no finding by the Tribunal as to who placed the purchase orders to the collieries and took the delivery of coal. The delivery was taken by the dealer on his own behalf or on behalf of the brick-kiln owners. Is there any privy of contracts in between the dealer and the brick-kiln owners. The copies of purchase orders given to the colliery have not been filed. Paragraphs 14 and 15 from the judgment of Sunil Kumar Coal Agent [2003] UPTC 1036 are reproduced below: "14. The dealer-opposite party has miserably failed to place any evidence on the record to show that he took the delivery of coal as an agent of the brick-kiln owners. The dealer has not filed copy of purchase orders given to collieries. It is not the case of the dealer that the purchase orders of coal were given to collieries by the alleged principals, i.e., by the brick-kiln owners in their names through the dealer as agent. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STC 444 (All); [195] UPTC 705 wherein the judgment delivered in Vinod Coal Syndicate [1989] 73 STC 317 (SC); [1988] UPTC 218 has been followed. The judgment proceeds on the footing that if freight is charged separately, it is not liable to be included in the taxable turnover of the assessee. In the case on hand, there is no finding by the Tribunal that the dealeropposite party acted as agent of the principal, namely brick-kiln owner. The definition of the word "turnover" as defined in section 2(i) of the U.P. Trade Tax Act is in pari materia with the definition of words "sale price" as contained in section 2(h) of the Central Sales Tax Act. For the sake of convenience section 2(h) of the Central Sales Tax Act is reproduced below: "2. (h) 'sale price' means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of 'sale price'. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the 'sale price', the exclusion clause cannot avail the assessee to take the amount in question out of the definition of 'sale price'. In this view the amount of freight forms part of the 'sale price' within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. It may be pointed out that even if the exclusion clause were read as an exception to the first part of the definition which, as has been pointed out, cannot be done, it cannot avail the assessee. It is only where the cost of freight is separately charged t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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