The true and proper construction of sections 2(h) and 15(a) of the Madras General Sales Tax Act, 1939, will determine the contention raised regarding the guilt or innocence of the petitioner.

The essential facts cannot be disputed and shortly stated they are that the petitioner who is a dealer in silver wares and gold jewels in Kumbakonam Town and an assessee under the General Sales Tax Act, furnished a return on the 15th April 1946 Ex. P-1, in Form ‘A’ for the year 1945-1946 which admittedly did not include the value of 15,322-1/8 tolas weight of silver relating to the silver articles sold by him. The justification for the non-inclusion of the value of this weight of silver according to the petitioner, is the practice followed by him to sell! the articles, not for proper money consideration but only after getting back the equivalent weight of silver from the customers, for the precise quantity of the silver utilised in the manufacture of the article or articles. I think it can be taken as proved that when the petitioner gave a finished silver article to a customer, he took back the equivalent weight of silver as well as the actual manufacturing charges in cash. It was only the cash received as the making or manufacturing charges, that was brought into the account and the quantity of silver was omitted from the account and from the ‘A’ return. According to the finding of the trial Court, the petitioner has not brought into the account and the ‘A’ return a sum of Rs 20, no being the price of 15,322 1/8 tolas of silver at the flat rate of Rs. 1-5-0 per tola. Rejecting the contention to the effect that under the law he was not bound to include this amount in his ‘A’ return, both the lower Courts have convicted the petitioner of an offence under section 15(a) though the appellate Court reduced the fine of Rs. 1,000 imposed on him by the trial Court and fined him a sum of Rs. 200 only.

Mr Jayarama Aiyar for the petitioner urges that the transaction in question will not amount to a sale as defined in section 2(h) which is as follows:

"‘Sale’ with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge."

Reference is made to the definition in the Sale of Goods Act, Act III of 1930, section 4, where a contract of sale is defined and from a comparison of these two sections, 1 am asked to infer that the petitioner’s action is not a sale but what is popularly known as barter. The definition of ‘sale’ in the General Sales Tax Act, is, in my opinion, much wider in scope and amplitude than in the Sale of Goods Act. According to this latter Act, a contract of a sale of goods is a contract whereby a seller transfers the property in goods for a price. The word ‘price’ is defined as money consideration for a sale of goods, so that in the case of a sale or contract of sale Under the Sale of Goods Act it is an essential requisite that the consideration should be money. But in order to bring a transaction within the ambit of the term as defined in the Madras General Sales Tax Act, it need not necessarily be that money alone, should be the consideration. Every sale under the Sale of Goods Act is certainly a sale under the General Sales Tax Act but every " sale " under the General Sales Tax Act, will not come within the definition of the term in the Sale of Goods Act, e.g., if a person transfers the property in goods to another in the course of trade or business for cash or for deferred payment or other valuable consideration it is a ‘sale’ within Madras Act IX of 1939, but unless there is money consideration for the sale, the transaction will not amount to a sale under Act III of 1930.

Whether the quantity of silver received by the petitioner from his customers in the course of the transactions in the present case