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High Court Of Madhya Pradesh
Bishambhar Dayal, C.J. and S.M.N. Raina, J.
Pench Valley Coal Co.Ltd.
Versus
State of Madhya Pradesh
Miscellaneous Petition 182 of 1967 Of
Decided On : Aug 09,1972
(2) Constitution of India-Arts. 226 & 227-principles of res judicata -how far applicable.
Although the principal of res judicata is applicable to writ petitions it would not be correct to apply it in terms of section 11 of the Code of Civil Procedure which has many technical aspects. Thus the rule of res judicata is applicable only where an Issue between the parties can be said to have been decided by the Court either expressly or by implication; but where no such adjudication can be inferred, the rule would not apply. 1968 JLJ 91 = 1968 RN 35 & AIR 1961 SC 1457 relied on. [Para 11
Where a claim is dismissed or disallowed without stating any reasons it may be inferred that it was not pressed because the petitioners conceded that it was not tenable. In these circumstances the matter can be said to have been adjudicated upon. But where there is no reference to it in the judgment, whatsoever, the matter cannot be said to have been adjudicated upon ever by implication and where there is no adjudication either expressly or by implication the rule of res judicata would not be applicable. [Para 12
(3) Constitution of India-Art.226-alternative remedy-existance of - is no bar to a writ of certiorari.
The existence of an alternative remedy is no bar to the exercise of jurisdiction by this Court under Article 226 of the Constitution particularly in proceedings for a writ of certiorari. The fact that the aggrieved party had another remedy is no doubt a relevant consideration but where it appears that the remedy would not be adequate, the Court may interfere. [Para 14
(4) Sales Tax-General Sales Tax Act, 1958 (M.P.)-S.2 (d)-Sales Tax Act, 1947 (C.P. & Berar)-S.2 (c)-dealer-includes del credere agent also.
The definition of the dealer as given in clause (d) of section 2 of the M.P. Act and the corresponding definition in the C.P. Act is very wide inasmuch as it expressly includes a del credere agent or any other mercantile agent by whatever name he is called who carries on business of buying, selling or distributing goods on behalf of any principal. In view of this definition it is not necessary that the agent must carryon the business of buying or selling on his account and figure as a purchaser or seller for being a dealer within the meaning of the Acts. 16 STC 412 relied on. 12 STC 18 distinguished. [Para 20
(5) Sales Tax - General Sales Tax Act, 1958 (MP)-Ss. 2 (r) 2 & (n)-turnover-taxable turnover-sale to del credere agent-deduction when permissible.
On the basis of the definitions of turnover and sale in the Act and the general concept of sale according to the provisions of Sale of Goods Act, unless there is a transfer of property in goods to the del credere agents in course of transaction. there would be no sale in his favour and the dealer would not be entitled to a deduction under sub clause (iv) of clause (r) of section 2 of the Act from taxable turnover even though he had obtained a declaration from the agent as a registered dealer. [Para 23
(6) Words & phrases -del credere agent, Pakka Adatiya & Kuchha Adatiya-distinction.
A del credere agent in one who, usually for extra remuneration, undertakes to indemnify his employer against loss arising from the failure of persons with whom he contracts to carry out the contracts.
Thus a del credere agent is one who guarantees performance of contracts in consideration of extra remuneration. Del credere agents are, however, common in foreign commercial practice. In our country we have the system of Kuchha Adatiya and Pakka Adatiyas. Pakka Adatiya is also not a creature of law but of custom in commercial world. Main feature of Pakka Adatiya is that he acts as a principal in relation both to his constituent as well as to the opposite party with whom he deals on the instruction of his constituent. The position of a Pakka Adatiya is analogous to a del credere agent. 34 MPLC 458 & 35 MPLC 118 referred to. [Para 25
(7) Agent - del credere agent-relation how established.
In the absence of the definition of del credere agent in the Order it would be necessary to examine the facts and circumstances of each case to determine whether he acted as a Pakka Adatiya or as a mere guarantor. If he acts as a Pakka Adatiya it follows that he would be acting as a principal and as such would function as an intermediate purchaser with the result that two sales will be involved-one from colliery to the agent and the other from the agent to the consumer. [Para 29
( 1. ) THIS order will also govern Miscellaneous Petitions No. 183 of 1967 (The Pench Valley Coal Co. Ltd. v. The State of M. P. and Ors.), No. 184 of 1967 (The Pench Valley Coal Co. Ltd. v. The State of M. P. and Ors.), No. 185 of 1967 (The Amalgamated Coalfields Ltd. v. The State of M. P. and Ors.), No. 186 of 1967 (The Amalgamated Coalfields Ltd. v. The State of M. P. and Ors.), No. 187 of 1967 (The Pench Valley Coal Co. Ltd. v. The State of M. P. and Ors.), No. 188 of 1967 (The Amalgamated Coalfields Ltd. v. The State of M. P. and Ors.), No. 189 of 1967 (The Amalgamated Coalfields Ltd. v. The State of M. P. and Ors.), No. 262 of 1967 (The Amalgamated Coalfields Ltd. v. The State of M. P. and Ors.), No. 263 of 1967 (The Pench Valley Coal Co. Ltd. v. The State of M. P. and Ors.), No. 387 of 1967 (The Pench Valley Coal Co. Ltd. v. The State of M. P. and Ors.) and No. 388 of 1967 (The Pench Valley Coal Co. Ltd. v. The State of M. P. and Ors. ).
( 2. ) ALL these petitions are directed against the assessment of sales tax. Eight of these petitions, namely, No. 182 of 1967, No. 183 of 1967, No. 184 of 1967, No. 187 of 1967, No. 263 of 1967, No. 428 of 1967, No. 387 of 1967 and No. 388 of 1967 have been filed by the Pench Valley Coal Co. Ltd. , while the others, namely, M. P. No. 469 of 1967, No. 262 of 1967, No. 189 of 1967, No. 188 of 1967, No. 186 of 1967 and No. 185 of 1967 have been filed by the Amalgamated Coalfields Ltd, Both the companies are incorporated under the Indian Companies Act and have their registered offices at Calcutta in the State of West Bengal. They are engaged in winning and trading in coal from coal mines at Parasia in the district of Chhindwara within the State of Madhya Pradesh. Both of them are registered dealers under the Madhya Pradesh General Sales Tax Act (hereinafter referred to as the "m. P. Act") and were formerly registered dealers under the C. P. and Berar Sales Tax Act, 1947 (hereinafter referred to as the "c. P. Act" ).
( 3. ) THE companies carried on business in coal during the years 1954-55 to 1960-61 and in the course of business despatched coal to various destinations outside the State of Madhya Pradesh in accordance with the directions of the appropriate authorities under the Colliery Control Order, 1945 (hereinafter referred to as the Order ). The companies also effected sales of coal within the State of Madhya Pradesh through del credere agents who were also registered as dealers under the Acts. The sales were effected on declarations made by such dealers under Sub-clause (iv) of Clause (r) of Section 2 of the M. P. Act. The companies claimed deduction in respect of such sales from the taxable turnover under Section 2 (r) (iv) of the M. P. Act. They also claimed that the coal despatched to various destinations outside the State of Madhya Pradesh to the consumers was not liable to sales tax under the M. P. Act. Both these claims were disallowed by the assessing authority.
( 4. ) IT would be here pertinent to note that the M. P. General Sales Tax Act came into force on 1st April, 1959. Prior to that the Central Provinces and Berar Sales Tax Act, 1947, was in force in the Mahakoshal region. The companies and their agents were also registered as dealers under the C. P. Act. In respect of the sales effected prior to the commencement of the M. P. Act, the companies claimed deduction from the taxable turnover under Section 2 (a) (ii) of the C. P. Act in respect of inside sales and exemption from sales tax in respect of sales outside the State in the course of inter-State trade and commerce. Both these claims were also disallowed by the assessing authority. ( 5. ) DURING the pendency of the assessment proceedings the companies had filed petitions before the Supreme Court challenging the assessment on similar grounds but they were ultimately withdrawn. Against the orders of the assessing authority, the companies preferred appeals to the Deputy Commissioner of Sales Tax, Jabalpur. During t
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