RAMANUJAM, J.

The question that arises for consideration in this case is as to whether the collections to the extent of Rs. 5, 817.41 made by the assessee as mahimai at the rate of half per cent. of the net sale price from his purchasers will form part of his taxable turnover.

It was contended by the assessee before the authorities below that the said mahimai collection has been made only from his selling agents, that it is a contribution by the purchasers only for renovation of a Vinayagar temple, and that the said sums collected as mahimai were not part of the sale proceeds. But his contention was overruled on the ground that the amounts collected were part of the sale consideration and that, therefore, they formed part of the taxable turnover, as there is no provision either in the Act or in the Rules giving a deduction for that amount. It is not in dispute that the amounts collected as mahimai formed part of the sale invoices issued by the assessee, though they were shown separately.

According to the assessee, the definition of "turnover" in section 2(r) of the Tamil Nadu General Sales Tax Act will not include the collections of this kind, as this was not the subject-matter of a bargain between the parties, and it is a voluntary payment made by the purchasers for certain charitable and religious object. The learned counsel for the assessee, in support of the said contention, referred to some of the decisions dealing with the scope of section 2(r).

In Radhakrishna Rao v. Province of Madras a Full Bench of this Court while dealing with the question as to whether certain commission agents licensed under section 8 of the Madras General Sales Tax Act, 1939, had violated the conditions of the licence granted to them in collecting a sum called rusum in pursuance of a trade usage and whether the said rusum formed part of the agreed commission contemplated by section 8, held that by collecting the amounts called rusum from the buyers with the consent of the sellers, according to the trade usage, they cannot be said to have violated the conditions of section 8. That decision does not throw much light as to the scope of the term "turnover" as defined in section 2(r). In Nemkumar Kesrimal v. Commissioner of Sales Tax, Madhya Pradesh a Division Bench of the Nagpur High Court, while considering the definition of "sale price" in section 2(g) of the Central Provinces and Berar Sales Tax Act, held that a sum charged as dharmada will not form part of the price proper, and their reason can be stated in their own words at page 228 :

"If it were price proper, it would have been included in the price and not separately charged. There is no material on record to hold that the seller could refuse to perform the agreement if dharmada was not paid. It appears to be a willing charge paid by the buyer in addition to the valuable consideration for the transfer of property. We are, therefore, inclined to hold on the material on record that it cannot be included in the sale price." *

In Srinivasa Timber Depot v. Deputy Commercial Tax Officer the scope of explanation (2) to section 2(r) of the Madras General Sales Tax Act, 1959, was considered and it was pointed out therein that what could be legitimately brought to tax under the Act is the aggregate sums of consideration for the transfer of property in the goods. In Spencer & Co. v. Joint Commercial Tax Officer the question arose as to whether the amount of sales tax collected under section 21-A of the Madras Prohibition Act, 1937, and the gallonage fee paid under clause (XI) of rule 22 of the Madras Liquor (Licence and Permit) Rules, 1960, formed part of the price of the goods sold and can be validly included in the assessable turnover of a dealer under the Madras General Sales Tax Act, 1959. It was held that the sales tax collected under section 21-A of the Prohibition Act cannot be included in the taxable turnover but the gallonage fee will form part of the assessable turnover. The reason for