The amount of inward freight directly paid by the purchaser to the truck owners would represent a part of the aggregate amount payable by him to the assessee and thus would be a part of the turnover liable to tax in the hands of the assessee.

( 1 ) THIS is the Commissioners revision under Section 11 (1) of the U. P. Sales Tax Act. The respondent-assessee, M/s. Vinod Coal Syndicate, deals in coal. For the assessment year 1975-76, the assessee disclosed his taxable turnover at Rs. 6,16,629. 90. The assessing authority did not accept the accounts and the disclosed turnover for various reasons. The main reason was that the assessee had not included the amount of freight inward in the turnover of sales of coal. The assessing authority hence made a best judgment assessment determining the taxable turnover at rs. 7,20,000.

( 2 ) THE assessees appeal having failed he went up in revision. The Additional Judge (Revisions), varanasi, accepted the assessees contention and held that since freight charges were paid by the principals directly, the same were not liable to be included in the sales of coal. As a result the disclosed turnover has been accepted. Aggrieved, the Commissioner has filed the present revision.

( 3 ) BEFORE taking up the contentions of the parties it would not be out of place to mention the modus operandi of the assessees business. The assessee used to procure orders for supply of coal. He imported coal from the collieries which are situated outside Uttar Pradesh against form xxxi. The coal was brought by trucks engaged by the assessee and on his instructions the trucks were unloaded at the business premises of the principals concerned. The cash memo issued by the assessee mentioned the price of coal, his commission and sales tax. The amount of freight inward is not mentioned in the cash memo. Sometimes it so happened that the intending purchaser refused to take delivery of the coal. That coal was unloaded at the assessees own depot and inward freight paid in respect thereof was included by the assessee in the sale price of coal. There is no dispute in the present case in regard to the out-turn in respect of such sales. The dispute is confined to the includibility of freight in the sale price of coal unloaded by the carriers directly and the freight inward in respect whereof was paid by the purchasers concerned.

( 4 ) THE controversy involves tried as feels firstly the import and ambit of the expression "turnover" and secondly when the property in the goods passes to the purchaser. According to the learned standing counsel since the assessee imports coal against form XXXI and issues the cash memos at his depot and further the coal is brought by the carriers engaged by the assessee, the goods remain his property till delivery is taken by the purchaser. It was, further, submitted that the expression "turnover" as defined in Section 2 (i) of the Act, embraces in its scope inward freight as well, whether or not separately charged in the invoices. On the other hand it was contended on behalf of the assessee by his counsel, Sri R. R. Agarwal, that the question whether inward freight directly paid by the purchaser can be included in the turnover of the dealer would depend on the terms of the agreement between the parties. If the obligation to pay freight is of the purchaser then it cannot form part of the sale price. According to the learned counsel an oral agreement can be spelt out in the present case from the fact that freight was paid by the purchaser directly to its carrier and secondly in the earlier year the accouts were accepted by the assessing authority itself when the modus operandi by the assessee was the same.

( 5 ) ON a careful consideration I am of the opinion that the contentions of the learned standing counsel should prevail. The expression "turnover" as defined in Section 2 (i) of the Act means

"the aggregate amount for which goods are supplied or distributed by way of sale or are sold, by a dealer either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration". The proviso to this clause is not relevant for the present purpose and hence it is omitt