# STATE OF MYSORE v. GUDUTHUR TlllMMAPPA & SON, & ANR

- **Citation:** [1967] 1 S.C.R. 627
- **Court:** Supreme Court of India
- **Decided:** 1966-09-30
- **Case number:** Civil Appeals Nos. 714-724 of 1965
- **Bench:** J. C. Shah, V. Ramaswami, V. Bhargaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mysore-v-guduthur-tlllmmappa-son-anr-3892
- **Pages:** 6

## Headnote

Madras General Sales-tax
(Turnover & Assessment)
Rules,
1939:0
r. 4-A (iv) { b )-Sale to· non-resident-Delivery to common carrier withi"n
State and insurance by buyer-Property if
passes
within
State-Lost
dealer, who L~·-Location of dealer if mtllerial.
Rule 4A(iv) (b)
of the Madras General Sales-tax
(Turnover
and
Assessment) Rules, 1939 lays down that tax has to be levied from
the
dealer who buys cotton in the State
and is the last dealer not exempt
from taxation. Sales-tax was sought to be recovered
fro~ the respondents on cotton purchased by them within the State and sold to persons
who were non-resident within the area to which the Madras Sales-tax Act,
1939 applied.
The non-resident buyers never entered the State either for
entering into contracts for the sale or for taking delivery.
The delivery
was given within the State to the common carrier, and the non-resident
buyers insured the goods as owners thereof and transmitted them to destination. The respondents' I?lea that since· the goods were sold by them
within the State to non-residents, they were not the last dealers not
exempt from taxation, was accepted by the Sales-tax
Appellate Tribunal
and the High Court.
In appeal to this Court the appellant-State contended that ( i) on the facts the respondents were the last dealers not
exempt from taxation and (ii) a buyer who was not resident within the
area to which the Act applied could not be held to be the last dealer for
the purpooc of the Rule.
HELD : (i)-The contention had no force. The common carrier took
delivery as agent of the buyer and the delivery
was within
the State.
1bcre W<i<-. lhe further circumstance that,
during transit, the goods were
insured hy the buyers at their own cost, and not by the respondents. The
buyers thus recognised that they were already the owners of the goods as
soon as they were given for transmission to the common carrier. [630 E]
The movement of the goods outside the State was by the buyers themselves after property in them had passed to them; so, the sales in question
were not sales in the course of inter-State trade. [631 CJ
Tata Iron and Steel Co. Ltd., Bombay v. S. R. Sarkar & Ors. [1961]
1 S.C.R. '79, referred to. ·
·
(ii) Under the Rule the location of the dealer buying it WB! immaterial. Therefore the non-resident buyers were the IB!t dealers who boupt
it in the State and tax bad to be levied from them. {631 0-H]
Stale of Andhra Pradesh v. Ml s. Abdul Bakhl & Bro.r. AI.R. 196S
S.C. 531, r~ferred to.
Civn. APPELLATE JURISDICTION : Civil Appeals Nos. 714-724
of 1965.
Appeals by special leave from the judgment anc;l order dated
January 29, 1962 of the Mysore High Court in Civil Revision
628
SUPREME COURT REPORTS
· ·· :..c
{1967] 1 S.C.R.
Petitions Nos. 1169 to 1176 of 1958 and 841, 842 and 865 of 1959
A
respectively.
R. Ganapathy' Iyer and R. N. Sachthey, for the appellant (in
all. _the appeals).
·
· R. Gopalakrislzan, for the respondents (in an the appeals).
I

## Text

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STATE OF MYSORE
v.
GUDUTHUR TlllMMAPPA & SON, & ANR.
September 30, 1966
[J. C. SHAH, V. RAMASWAMI AND V. BHARGAYA, JJ.]
Madras General Sales-tax
(Turnover & Assessment)
Rules,
1939:0
r. 4-A (iv) { b )-Sale to· non-resident-Delivery to common carrier withi"n
State and insurance by buyer-Property if
passes
within
State-Lost
dealer, who L~·-Location of dealer if mtllerial.
Rule 4A(iv) (b)
of the Madras General Sales-tax
(Turnover
and
Assessment) Rules, 1939 lays down that tax has to be levied from
the
dealer who buys cotton in the State
and is the last dealer not exempt
from taxation. Sales-tax was sought to be recovered
fro~ the respondents on cotton purchased by them within the State and sold to persons
who were non-resident within the area to which the Madras Sales-tax Act,
1939 applied.
The non-resident buyers never entered the State either for
entering into contracts for the sale or for taking delivery.
The delivery
was given within the State to the common carrier, and the non-resident
buyers insured the goods as owners thereof and transmitted them to destination. The respondents' I?lea that since· the goods were sold by them
within the State to non-residents, they were not the last dealers not
exempt from taxation, was accepted by the Sales-tax
Appellate Tribunal
and the High Court.
In appeal to this Court the appellant-State contended that ( i) on the facts the respondents were the last dealers not
exempt from taxation and (ii) a buyer who was not resident within the
area to which the Act applied could not be held to be the last dealer for
the purpooc of the Rule.
HELD : (i)-The contention had no force. The common carrier took
delivery as agent of the buyer and the delivery
was within
the State.
1bcre W<i<-. lhe further circumstance that,
during transit, the goods were
insured hy the buyers at their own cost, and not by the respondents. The
buyers thus recognised that they were already the owners of the goods as
soon as they were given for transmission to the common carrier. [630 E]
The movement of the goods outside the State was by the buyers themselves after property in them had passed to them; so, the sales in question
were not sales in the course of inter-State trade. [631 CJ
Tata Iron and Steel Co. Ltd., Bombay v. S. R. Sarkar & Ors. [1961]
1 S.C.R. '79, referred to. ·
·
(ii) Under the Rule the location of the dealer buying it WB! immaterial. Therefore the non-resident buyers were the IB!t dealers who boupt
it in the State and tax bad to be levied from them. {631 0-H]
Stale of Andhra Pradesh v. Ml s. Abdul Bakhl & Bro.r. AI.R. 196S
S.C. 531, r~ferred to.
Civn. APPELLATE JURISDICTION : Civil Appeals Nos. 714-724
of 1965.
Appeals by special leave from the judgment anc;l order dated
January 29, 1962 of the Mysore High Court in Civil Revision
628
SUPREME COURT REPORTS
· ·· :..c
{1967] 1 S.C.R.
Petitions Nos. 1169 to 1176 of 1958 and 841, 842 and 865 of 1959
A
respectively.
R. Ganapathy' Iyer and R. N. Sachthey, for the appellant (in
all. _the appeals).
·
· R. Gopalakrislzan, for the respondents (in an the appeals).
I
The Judgment of the Court was delivered by
· Bhargava, J. · These appeals arise out of proceedings for
assessment of sales-tax under the Madras General Sales Tax Act
. No. IX of 1939 (hereinafter referred to as "the Act") in respect of
certain sales of cotton. The respondents were registered dealers
in cotton, including kappas, groundnuts and cotton seeds with
their Head Office at Bellary and Branch O;Iices at a number of places. They were also licensees under s. 8 of. the Act in respect of
cotton. They made various purchases of cotton at their places
of business and subsequently sold them to different parties. Amongst
these were a number of persons who were not resident within the
area to which the Act applied. The question arose as to who was
liable to pay· the sales-tax in respect of those transactions of sale
of cotton in which the cotton had been sold by the respondents to
non-residents. When the case came up before the Mysore Sales
.Tax Appellate Tribunal, the Tribunal determined the c.ourse of
.transactions and held as follows :
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"The examination of the contracts, the invoices, the
railway receipts, insurance policies and other documents
relating to the. disputed turnovers shows that the nonresident foreigners place orders for the required number
of bales of cotton specifying the quality and the rate
some times ori phone which would be confirmed subsequently. by Telegrams or letters and finally by written agreements. Thereupon, the appellants consign . the cotton
bales in their own name, the consignee being the nonresident foreign buyer~ (except in respect of a total turnover of Rs. 2,93,567~2-0 which would cover the items
I, 3, 5, 7, 31, 32, 33 and 44 of the typed statement of the
account for the year 1954-55 and a total turnover of·
Rs. 3,71,880-13-0 which would cover the items 6, 10, 11, 12,
13, 14, 15, 16, 24, 25,·26, 29, 30, 31, 35, 36 and 37 of the
typed statement of account for the year 1955-56) and send
the railway receipts to their bankers at the other end for
the collection of the amount. It is seen that · notwithstanding the fact that there are specific provisions in the
contract that 90 per cent of the invoice amounts should
. be paid to the bankers when the railway receipts would
be delivered to the purchasers, surprisingly the said pro-
·vision. is rendered nug<:tory ty re~son <'f the fact th::t the
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MYSORE v. THIMMAPPA & SONS (Bhargava, I.)
629
appellants despatch the cotton in such a way that the
consignee could get cotton bales at the other end even
though without any payment to the banker. The moment
the appellants consigned the goods, they will have lost
complete control and dominion over the cotton thus despatched. Further, non-resident fore~gn buyers who obtained the necessary transport penrut under the Cotton
Control Order, 1950, actually insure the cotton llales as
the owners thereof and transmit the same from Bellary to
the destination. This is so even in cases where the appellants themselves have consigned the goods in their own
name, the consignees being· themselves. All these facts
clearly go to show that the sales are completed at Bellary
and the non-resident foreign buyers in whose favour the
property .in the goods had been transferred actually transported the cotton thus purchased. The State Representative does not seriously dispute about the correctness of
the modus operandi of the appellants in their dealings
with their purchasers during five years of assessments.
Bearing these facts in mind, we shall now proceed to examine each oft.he contentions raised by the learned counsel."
On these facts, the question that fell for determination was
whether for purposes of s. 5(2) of the Act read with Rule 4-A(iv) (b)
of the Madras General Sales Tax (Turnover and Assessment)
Rules, 1939 (hereinafter referred to as "the Rules"), the respondents were the dealers who bought the cotton in the State and
were the last dealers not exempt from taxation under s. 3(3) of
the Act on the amount for which the cotton was bought by them.
The contention on behalf of the respondents was that the cotton
was sold by them within the State of Madras to parties who were
residing outside. the State of Madras ; but the sales having been
made by them within. the State of Madras, they could not be held
to be dealers who bought the cotton in the State and were the last
dealers for that purpose not exempt from taxation. According
to .their contention, the parties,, to whom they sold the cotton
within the State, were the persons liable to be taxed in accordance
with s. 5(2) of the Act and Rule 4-A(iv)(b) of the Rules. The
Tribunal. accepted this plea of the respondents, allowed the· appeals, and set aside the otders of the subordinate authorities directing payment of sales-tax by the respondents. That order was
upheld by the lfigh Court of Mysore when the revisions against
the orders of the Tribunal came up for dedsion before it. These
appeals before us coming up by special leave are directed against
the above order of the High Court. We may mention that the
revisions came up before the High Court of Mysore, because the
'.lrea, in respect of which the dispute arose, was originally within
the State. of Madras, but, on Reorganisation of States, came within the State of Mysore. The law applicable to sales in the year
630
SUPllElllE
C:OUllT
llPOllTS
(1967) 1 S.C.R.
in question, however, continued to be the Madras Sales Tax Act
IX of 1939, and that area came to be designated as Madras Arca
of the State of Mysore.
In these appeals, two points were canvassed before us by
learned counsel for the State of Mysore. At the initial stage,
learned counsel for the State indicated that he did not intend to
challenge the finding that the situs of the sales in question were
all within the Madras area ; but at a later stage, he challenged this
finding as the second altcrnati"e point in support of these appeals.
We may deal with this point first.
The course of transactions found by the Tribunal, reproduced
above, led the Tribunal and the High Court to the finding that the
situs of the sales by the respondents to the non-resident parties
was in Bellary where the sales were completed and delivery also
took place. The submission by learned counsel for the appellant
was that none of those parties themselves came within the State to
Rellary either for the purpose of entering into contracts for sale,
or for purposes of taking delivery.
Delivery was given to common
carrier, and consequently, it should be held that the sales were
completed not within the State, but outside at tlie places to which
the goods were consigned for delivery to the various parties. We
are unable to accept this submission. It has been rightly held by
the High Court that the common carrier took delivery as agent of
the buyer and that delivery was within the State. There is the further
circumstance Jhat, during transit, the goods were insured by the
buyers at their own cost, and not by the respondents. The buyers
thus recognised that they were already the owners of the cotton
bates as soon as they were given for transmissicn to the common
carrier.
In this connection, a question also arose whether the sales
by the respondents to those non-resident parties were sales in the
course of inter-Stafe trade.
What are the sales in the course of
inter-State trade was explained by this Court in Tata Iron and Steel
Co. Limited, Bombay v. S. R. Sarkar and Olhers (1), where clauses
(a) & (b) of s. 3 of the Central Sales Tax Act, 1956 were
interpreted as follows :
"In our view, therefore, within cl. (b) of s. 3 are
included sales in which property in the goods passes during
the movement of the goods from one State to another by
transfer of documents of title thereto ; cl. (a) of s. 3 covers
sales, other than those included in cl. (h), in which the
movement of goods from one State to another is the result
of a covenant or incident of the contract of sale, and
property in the goods passes in either State."
(I) [1961] t S.C.R. 379.
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MYSORE v. TlllMMAPPA & SONS (Bhargava, 1.)
631
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The nature of transactions found by the Tribunal in the cases
before us shows that property in the cotton bales sold by the respondents did not pass during the movement of goods from one
State to another by transfer of documents of title, and, further,
that the movement of goods from the Madras area to places outB
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side the State was not the result of any covenant or incident of
the contract of sale. The contract of sale was completely carried
through within the Madras area itself, in which area the price
was received by the respondents and the cotton bales were delivered to the buyers. The movement of the cotton bales outside
the State was by the buyers themselves after property in them
had passed to them, so that these sales were not sales in the course
of inter-State trade.
We now come to the second and the main point which was
urged before us by learned counsel for the appellant. The submission of learned counsel was that a buyer, who was not resident
within the area to which the Act applied, could not be held to be
the last dealer for purposes of Rule 4-A(iv)(b) of the Rules.
According to him, it is the situs of the seller and the buyer which
determines the applicability of this Rule, and not the situs of the
sale of cotton itself. We are unable to accept this submission.
The language of the Rule is clear tqat the tax is to be levied from
the dealer who buys it in the State and is the last dealer not exempt
from taxation. The test laid down thus is as to who buys it in
the State and not who is in the State for purposes of buying the
cotton. · The Mills· outside the State were no doubt carrying on
their main business of manufacture of yarn or cloth outside the
State; but so far as the act of purchase of these cotton bales was
concerned, it was carri~d out by them within the State. It is to
be noticed tl\at in the Rule the expression used is "the dealer who
buys it in the State and is the last dealer not exempt from taxation".
If the intention had been that the location of the buyer himself
should be the criterion for imposing tax on him, the language used
in the Rule would have been quite different. It could easily have
been laid down that the tax will be levied from the dealer in the
· State who buys it as the last dealer not exempt from taxation.
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The expression as used in the Rule makes it perfectly clear that
the location of the dealer himself is immaterial. The liability to
be taxed attaches if the purchase itself by the dealer is within the
State. In the case of the sales in question, therefore, the buyers
who purchased the cotton bales from the respondents were the
last dealers who bought those cotton bafes in the State and the
single point tax under s. 5(2) of the Act had to be levied from
them and not from the respondents.
In this connection, an alternative argument was also raised
for the first time by learned counsel for the appellant that those
M16Sup.C.I./66-12
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SUPRl!MI! COURT REPORTS
(1967] J s.c.R.
outside buyers could not be held to be dealers carrying on the
business of purchase in the State, and if they were not dealers, the
purchases by them had to be ignored, so that the last buyers in the
State would be the respondents, because their purchases would
be the last purchases by dealers made when they acquired these
cotton bales subsequently sold by them. This contention was
riot raised at any earlier stage before the Tribunal or the High
Court, and it is, therefore, not open to the appellant to urge it
before this Court for the first time. In any case, it is clear that the
outside buyers were all mills which were purchasing cotton bales
for use in their. manufacturing process and such purchases by
them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this
Court to constitute the business of purchase by the buyers in The
State of Andhra Pradesh v. M/s. H. Abdul Bakshi and Bros.( 1).
Consequently, this ground raised has also no force. The appeals
fail and are dismissed with costs. One hearing fee only.
•
Y.P.
Appeals dismissed
(I) (1964) 7 S.C.R. 664: A.•.R. 19~' S.C. 531.
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