Bayyana Bhimayya Vs. The Government of
Andhra Pradesh  INSC 295 (14 December 1960)
CITATION: 1961 AIR 1065 1961 SCR (3) 267
CITATOR INFO :
F 1962 SC1585 (5,7,8,9) R 1973 SC1061 (11,12)
D 1975 SC1996 (2) D 1978 SC 389 (22,44)
Sales Tax-Delivery order-Meaning of-Two
separate transactions-Sales-tax, if leviable at both Points-Sale of Goods Act,
1930 (111 of 1930), s. 2(4)-Madras General Sales Tax Act, 1939 (Mad. IX of
The respondents dealt in gunnies. They first
entered into contracts with two Mills agreeing to purchase gunnies at a certain
rate for future delivery, and also entered into agreement with third parties,
by which they charged something extra from those third parties and handed over
the delivery order known as kutcha delivery order. The Mills however did not
accept the third parties as contracting parties, but only as the agents of the
appellants and delivered the goods against the kutcha delivery orders, and
collected the Sales Tax from the third parties. The tax authorities treated
these transactions between the appellant and the third parties as fresh sales
and sought to levy sales-tax again, which the appellants contended, was not
demandable as there were no second sales; the delivery of a kutcha delivery
order did not amount to a sale of goods, but was only an assignment of a right
to obtain delivery of gunnies which were not in existence and not appropriated
to the contract; this was only an assignment of a forward contract.
Held, that the agreements between the parties
showed that third parties were not recognised by the sellers. A delivery order
being a document of title to goods, the possession of such a document not only
gave the right to recover the goods but also to transfer them to another by
endorsement or delivery. There being two separate transactions of sale, one
between the Mills and the original purchasers and the other between the
original purchasers and third parties, tax was payable at both the points.
The Sales Tax officer, Pilibhit v. M/s. Budh
Prakash jai Prakash,  1 S.C.R. 243, Poppatlal Shah v. The State of
Madras,  S.C.R. 677, and The State of Andhra v. Kolla Sreeramamurthy,
decided on June 27, 1957, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 223 and 224 of 1960.
Appeals from the order dated November 23,
1956, of the Andhra Pradesh High Court, Hyderabad, in Tax Revision Cases Nos.
17 and 18 of 1956.
268 C. K. Daphtary, Solicitor-General of
India and T. V. B. Tatachari, for the appellants.
K. N. Rajagopal Sastri and D. Gupta, for the
1960. December 14. The Judgment of the Court
was delivered by HIDAYATULLAH, J.-These are two appeals on certificates granted
by the High Court of Andhra Pradesh against a common judgment in a sales tax
revision filed by the appellants in the High Court.
The facts are as follows: In the year
1952-53, for which the assessment of sales tax was in question, the appellants
dealt in gunnies, and purchased them from two Mills in Visakhapatnam District
and in respect of which they issued delivery orders to third parties, with whom
they had entered into separate transactions. The procedure followed by the
appellants was this: They first entered into contracts with the Mills agreeing
to purchase gunnies at a certain rate for future delivery. Exhibit A-1 is a
specimen of such contracts. The appellants also entered into agreements with
the Mills, by which the Mills agreed to deliver the goods to third parties if
requested by the appellants. The Mills, however, did not accept the third
parties as contracting parties but only as agents of the appellants. Exhibits
A-2 and A-2(a) are specimen agreements of this kind. Before the date of
delivery, the appellants entered into agreements with third parties, by which
they charged something extra from the third parties and handed over to them the
delivery orders, which were known as kutcha delivery orders.
Exhibits A-3 and A-4 are specimens of the
agreement and the delivery orders respectively. The Mills used to deliver the
goods against the kutcha delivery orders along with an invoice and a bill, of
which Exs. A-6 and A-7 are specimens respectively, and collected the sales tax
from the third parties. The tax authorities, however, treated the transaction
between the appellants and third parties as a fresh sale, and sought to levy
sales tax on it 269 again, which, the appellants, contended, was not
demandable, as there was no second sale.
The appellants failed in their contentions
before the Deputy Commercial Tax Officer, Guntur, and their appeals to the
Deputy Commissioner of Commercial Taxes, Guntur and the Andhra Sales Tax
Appellate Tribunal, Guntur, were unsuccessful. The appellants then went up in
revision to the High Court under the Madras General Sales Tax Act, 1939 (as
amended by Madras Act No. 6 of 1951), but were again unsuccessful. The High
Court, however, granted certificates, on which these appeals have been filed.
The contentions of the appellants are that
the agreement and the delivery of the kutcha delivery order did not amount to a
sale of goods, but was only an assignment of a right to obtain delivery of the
gunnies, which were not in existence at the time of the transaction with third
parties, and were not appropriated to the contract, or, in the alternative,
that this was only an assignment of a forward contract.
They seem to have relied in the High Court
upon the deci- sions of this Court reported in The Sales Tax Officer, Pilibhit
v. Messrs. Budh Prakash Jai Prakash(1) and Poppatlal Shah v. The State of
Madras (2) to show that these transactions were not sales. These cases were not
relied upon by the appellants before us, presumably because the High Court has
adequately shown their inapplicability to the facts here.
The learned Solicitor-General appearing for
the appellants rested his case entirely upon the first contention, namely, that
there was only an assignment of a right to obtain delivery of the gunnies and
not a sale. He contended that there was only one transaction of sale between
the Mills and the third parties, who, on the strength of the assignment of the
right to take delivery, had received the goods from the Mills. in our opinion,
this does not represent the true nature of the transactions, either in fact, or
To begin with, the Mills had made clear in
their agreements that they were not recognising the third parties as
contracting parties having privity with (1)  1 S.C.R. 243.
(2)  S.C.R. 677.
270 them, and that delivery would be given
against the kutcha delivery orders to the third parties as agents of the
appellants. The Mills, therefore, recognised only the appellants as contracting
parties, and there was thus a sale to the appellants from the Mills, on which
,;sales tax was correctly demanded and was paid. In so far as the third parties
were concerned, they had purchased the goods by payment of an extra price, and
the transaction must, in law and in fact, be considered a fresh transaction of
sale between the appellants and the third parties. A delivery order is a
document of title to goods (vide s. 2(4) of the Sale of Goods Act), and the
possessor of such a document has the right not only to receive the goods but
also to transfer it to another by endorsement or delivery. At the moment of
delivery by the Mills to the third parties, there were, in effect, two
deliveries, one by the Mills to the Appellants, represented, in so far as the
Mills were concerned, by the appellants' agents, the third parties, and the
other, by the appellants to the third parties as buyers from the appellants.
These two deliveries might synchronise in point of time, but were separate, in
point of fact and in the eye of law. If a dispute arose as to the goods
delivered under the kutcha delivery order to the third parties against the
Mills, action could lie at the instance of the appellants.
The third parties could proceed on breach of
contract only against the appellants and not against the Mills. In our opinion,
there being two separate transactions of sale, tax was payable at both the
points, as has been correctly pointed out by the tax authorities and the High
The appellants relied upon a decision of the
Andhra Pradesh High Court in The State of Andhra v. Kolla Sreeramamurty (3),
but there, the facts were different, and the Division Bench itself in dealing
with the case, distinguished the judgment under appeal, observing that there
was no scope for the application of the principles laid down in the judgment
under appeal, because in the cited case, "the property in the goods did
not pass from the mills to the assessee and (3) Second Appeals Nos. 194 &
195 of 1954 decided on June 27, 1957.
271 there was no agreement of sale of goods
to be obtained in future between the assessee and the third party".
In the result, the appeals tail, and are
dismissed with costs. One hearing fee.