A commission agent who does not include the entire consideration for the sale of goods in his turnover and does not conform to the conditions of the licence issued to him is not entitled to exemption from tax under section 8 of the Madras General Sales Tax Act.

VISWANATHA SASTRY, J.

( 1 ) IN T. R. C. No. 51 of 1955 the assessee, a merchant of Chodavaram, seeks revision of an order of the Andhra Sales Tax. Appellate Tribunal, Guntur, relating to the assessment year 1951-52. Objection is taken to two sums of rs. 85,003-9-0 and Rs. 14. 826/- included in his turnover, the first relating to the turnover in a commission agency business in jaggery carried on by the assessee and the second relating to the value of 1059 bags of bran alleged to have been kept outside the books. The assessee held a licence under Section 8 of the Madras General Sales Tax Act but exemption on the turnover of rs. 85,003-9-0 representing the price of jaggery sold by the assessee as commission agent, was refused on the ground that he had not included the amounts collected by him by way of dharmam (charity), valtar (subscriptions to a local Merchants Association) and katha cooly (accountancy charges) aggregating to Rs. 780-9-9 in his turnover or in the pattials issued to his principals. It is admitted on behalf of the assessee that this sum of Rs. 780-9-9 did not form part of his agreed commission. The contention is that the above sums did not also form part of the sale price but were paid by the buyers of jaggery for the specific purposes for which they were intended and applied by the assessee for those purposes and did not therefore appear in his turnover or the pattials issued to the sellers. It was also urged that these were customary payments made by purchasers of jaggery and were well-known to the principals. It was argued on behalf of the respondent that the amounts in question formed part of the consideration for the sale of jaggery and that the omission to include them in the turnover and in the pattials issued to the principal constituted a breach of the conditions of section 8 and of the licence and disentitled the assessee to the the exemption granted by section 8 of the Act.

( 2 ) A commission agent in the position of the assessee having control over or possession of the goods and having authority from the owners of the goods to pass the property in and title to the goods is a "dealer" within the definition in section 2 (b) of the Madras General Sales Tax Act which includes a person carrying on the business of selling goods. Radha Krishna v. The Province of Madras . "sale" is defined in section 2 (h) of the Act as meaning every transfer of property in goods by one person to another in the course of trade or business for cash or other valuable consideration. Jaggery was sold by the assessee to different buyers during the assessment year for a price. Under Section 3 of the Act every dealer has, subject to the provisions of the Act, to pay for each year a tax on his total turnover. Under Rule 4 (1) of the turnover and assessment rules the gross turnover of a dealer is the amount for which the goods are sold by the dealer. But for the exemption given by Section 8 of the act the assessee would be liable to pay tax as a dealer on the sales of jaggery effected by him. Section 8 of the Act, so far as it is here relevant, runs as follows :"8. The State Government may, on application and on payment of such fee as may be prescribed in that behalf, license any person under this section, who for an agreed commission or brokerage, buys or sells on behalf of known principals specified in his accounts in respect of each transaction and may exempt from the tax or taxes payable under section 3, such of his transactions as ace carried out in accordance with the terms and conditions of his licence : provided always, that, save where the transaction consists of a sale by a grower of produce grown by him or on his land, no such exemption shall be given unless the amounts for which the goods, concerned in such transactions are sold, are included in the turnover of the principals or of the dealers from whom purchases were made, or would have been so included but for an exemption provided under this Act. " licences under this

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