A dealer who makes purchases for commission on behalf of his principles is a dealer within the meaning of the Bihar Sales Tax Act, 1959, and is liable to pay purchase tax on such purchases.

G. C. Bharuka, J.

1. - The present case has been referred by the Commercial taxes Tribunal, Bihar, Patna under Sec.33 (1) of the Bihar Sales tax Act, 1959 (hereinafter in short the act only) referring the following question for the opinion of this Court:

"whether in the facts and circumstances of the case the finding of the Tribunal that a sum of Rs.2,94,952.48 Paise which represented the aggregate sale price of transaction in which the dealer acted both as selling and purchasing agent, can be included within the gross turnover of the dealer for the purpose of levy of purchase tax is legal ?"

2. The relevant facts may be summarised in short. The assessee is a registered dealer under the Act and the question involved relates to an assessment proceeding pertaining to financial year 1966-67. During this period transaction in Chililes were liable to levy of tax in the hands of the purchaser. The assessee filed a return showing gross turnover of rs.5,46,955.26 Paise. The assessee while examining the books of accounts found that the purchases of Chillies to the extent of Rs 2,94,952.48 Paise has not been included in the taxable turnover on the ground that according to the assessee, in the transaction relating to this commodity he has acted as an agent of both the seller and the purchaser and therefore, in his hands no tax was lievable To substantiate the claim for exemption, the assessee produced a register showing the receipt of chillies from cultivators on different dates with a corresponding entries of purchases by different dealers of out side the State of Bihar. From the assessment order it appears that for ascertaining the true nature of the transaction, the assessing Officer examined one of the cultivator-sellers, who disclosed that be had sold the stock to the assessee and the assessee had issued a purchase memo containing weight, rate etc. After making a visit to the shop of the assessee, the Assessing Officer has recorded that the cultivators used to come to the assessees business premises and after negotiation, used to sell their goods for price against which purchase memos used to be issued. Subsequently, those goods used to be delivered to common carrier consigned as self for different destinations, where it used to be dilivered to the persons for whom the purchases had been made by the assessee. The Assessing Officer by reference to various transactions and entries has concluded that manipulations have been made in the books of accounts in order to make out a claim for exemption. On these facts the transactions of chillies was held to be liable for the purchase tax in the hands of the assessee holding it to be a purchase by him either in his own account or on account of the principles of other states. It was also found that the assessee had also charged purchase tax at the rate of 5 per cent from his principles of out side the State, which in the books of accounts had been shown under Amanat Kbata.

3. The assessee preferred an appeal and the appellate authority by placing reliance on a Allahabad Judgment in the case of Commissioner sales Tax, U. P. V/s. Vijav Kumar Krishna Kumar, (1968) 21 STC 37, remanded the case for fresh assessment. Against the said order both the assessee and the Department preferred revisions before the Tribunal which were disposed of by a common judgment. The Tribunal after noticing the facts found by the Assessing Officer recorded its own finding on the basis of the books of accounts examined by them, which is as follows :

"the next question is whether the assessee was an agent of the sellers or the purchasers. If he was the former, he was not liable for purchase tax but if he was the latter, he was clearly liable. On a consideration of the manner in which the transactions have been put through and recorded in the books of account, and on his own admission in the appeal it is clear that the assessee was functioning as a commission agent both on behalf of the sellers and the purchaser. T