Commercial Tax Officer And Another v. Raj Sheel

1. Our attention has been drawn to the judgment of this Court in the case of Anand Swarup Mahesh Kumar v. CST where the principle has been laid down that where the dealer is authorised by law to pass on any tax payable by him on a transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales or purchases but where there is no statutory provision authorising the dealer to pass on the tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realises the same from the purchaser. The essential factor which distinguishes the former class of cases from the latter class is the existence of the statutory provision authorising a dealer to recover the tax payable on the transaction of sale from the purchaser

2. Our attention has also been drawn to another judgment of this Court in the case of Central Mines v. Special CTO where it has been held that includibility of sales tax charged by the dealer from the purchaser turns on the question whether or not the tax is recoverable from the purchaser under a statutory obligation. Even where the sales tax is not included in the bill but is collected simultaneously and kept in a suspense account by the dealer, the amount collected would be part of the turnover as defined in Section 2(s). The amount includible in the turnover on a true interpretation of Section 2(s) cannot become excludable merely by reason of the accountancy device adopted by the dealer concerned

3. Mr. A. Subba Rao, learned counsel appearing on behalf of the appellant, has also invited our attention to the amendments made in Sections 30-B and 30-C by the Andhra Pradesh General Sales Tax (Amendment) Act, 1985 (Act 18 of 1985) which came into force on 1-7-1985. Mr. Subba Rao contends that in view of the decision in Anand Swarup case and also under these provisions, the decision of this Court in Central Mines case requires reconsideration

4. In our view, the matter should be considered by a larger Bench

5. Let this case be placed before Honble the Chief Justice of India for necessary directions.