Holding

A commission agent is liable to pay surcharge on its aggregate turnover; the surcharge cannot be limited to the turnover of principals, and the statutory provisions are clear.

Summary

The Cardamom Planters Association, a society registered under the Societies Registration Act, acted as a commission agent/auctioneer for cardamom growers, collecting a 1% commission on sales. It was assessed for sales tax and a surcharge under the Kerala General Sales Tax Act, 1963 and the Kerala (Surcharge on Taxes) Act, 1957 (as amended by Kerala Act 40 of 1976). The society argued that, as an agent, its surcharge liability should be limited to the turnover of principals whose sales exceeded the surcharge threshold, invoking agency principles and Rule 9(k) of the sales‑tax rules. The High Court held that the society, defined as a dealer under the statutes, is liable for surcharge on its aggregate turnover, and the Supreme Court affirmed this view, stating that the statutes do not permit dissecting turnover by principal and that the agency argument cannot override clear legislative intent. The Court dismissed the society’s appeals, leaving the surcharge liability intact.

Issues considered

Whether a commission agent is deemed a 'dealer' under the Kerala General Sales Tax Act and thus liable for surcharge on its total turnover.
Whether the surcharge liability of an agent can be limited to the turnover of principals whose turnover exceeds the surcharge threshold.
Whether Rule 9(k) of the Kerala Sales Tax Rules exempts the commission agent from surcharge liability.
Whether the statutory scheme allows dissection of an agent's turnover for surcharge calculation.
Whether the surcharge requirement violates Article 19 of the Constitution due to the hardship on the agent.

Legislation cited

Cardamom Act, 1965 (Act 42 of 1965)
Cardamom (Licensing and Marketing) Rules, 1977
Kerala Act 40 of 1976 (amendment to Surcharge Act)s. 3(1)
Kerala General Sales Tax Act, 1963s. 2(viii), s. 2(xxv), s. 2(xxvi), s. 2(xxvii)
Kerala Surcharge on Taxes Act, 1957s. 3
Societies Registration Act

Subjects

sales taxsurchargecommission agentdealer definitionagency lawKerala tax lawArticle 19turnovertax liabilityCardamom

Judgment

CARDAMO¥ PLANIBRS ASSOCIATION A.
BOD INAYAKANUR
v.
DEPUTY COMMISSIONER OF SALES TAX (LAW)
BOARD OF REVENUE (TAXES) ERNAKULAM

AUGUST 7, 1989 B

.,.., [SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.]

The Kera/a (Surcharge on Taxes) Act 1957-Section 3-Levy of
surcharge on Sales Tax-Society composed of Cardamom growers-
l Whether liable for levy of Surcharge in respect of sales effected on C
'behalf of members of society.

The appellant-assesse is a Society registered under the Societies
Registration Act. Its members are Cardamom growers in the State of
Kerala. The Society conducts the business as an auctioneer under a
licence issued to it under the Cardamom Act (Act 42 of 1965) read with D
the Cardamom (Licensing and Marketing) Rules, 1977, one of the
Conditions of this licence being that as an auctioneer it shall not charge
more than one percent of the sale price as commission for the services
rendered by it. It is common ground that the society bas obtained the
relevant licence and the individual members/growers of Cardamom bad
no such licence. The mode of the business was that planters left their E
produce with the Society and the Society after mixing the produce of all
the growers, put the same to auction. The Society collected 1% as com-
mission out of the sale proceeds from each of the planters. Besides
cardamom, the Society sold other goods also.

[ The Kerala General Sales Tax Act 1963 imposes sales tax on every F
1-- dealer whose total turnover for any year exceeds a specified sum which
' differed from year to year. In 1957 the,Kerala Legislature introduced a
surcharge on sales tax. Section 3 of the Kerala Surcharge on taxes Act
1957 prescribes that the tax payable under the Kerala General Sales
Tax Act 1963, shall, in the case of a dealer whose turnover exceeds
Rs.30,000 a year, be increased by a surcharge at the rate of 5% of the G
tax payable for th2t year. The provisions of the Kerala General Sales
Tax Act were made applicable to the levy and collection of the said
J- surcharge. Kerala Act 40of1976 stepped up the·rate of sur<harge. The
important feature of the latter Act is that unlike sales tax, which the
dealer was entitled to get reimbursed from the purchaser of the goods
sold by him, the surcharge had to be borne by lhe dealer himself, as H
719
720 SUPREME COURT REPORTS [ 19891 3 S.C.R.

A Sub-Section (2) of Section 3 of lbe Surcharge Act prohibited the dealer
~
from collecting lbe surcharge payable by him. Further the dealer might
be liable for sales tax al different rates on the turnover of the different
goods dealt with by him, be was to pay surcharge calculated on tbe
amount of tbe sales tax payable by him in respect of bis total dealings
throughout the year.
B
•
The assessee's contention was that the Society sold goods only in
1
its capacity as a commission agent for various principals and that on lbe
general principle of agency' an agent like the assessee could be liable '':_)
surcharge only to the same extent as tbe principal whom ii represented
On this plea, it could not be made liable for any surcharge in respect of

·~
the sales effected by it on behalf of lbe principals whose sales through
c the Society did 1101 exceed the limits set out in Sec. 3(1) of the Surcharge
Act.

The Tribunal bad accepted the above contention of the appellant
In the appeals against the assessment for the assessment years 1967-68
...~
D to 1969-70. The sales Tax assessments of the appellant for the assess-
menl years 1973-74 to 1976-77 were completed by lbe Sales Tax Officer
following the aforesaid order of the· Tribunal. These assessments were
set aside by the Dy. Commissioner of Sales Tax wbo took the view that
tbe Society was liable to pay surcharge on its aggregate turnover in each
of tbe assessment years. The appellant-assessee preferred appeals to the
E Appellate Tribunal against lbe orders of the Deputy Commissioner.
The Tribunal allowed the appeals following its order relating to lbe
earlier assessment years. II accordingly set aside the orders of the Dy.
•
Commissioner and restored the assessments made by tbe Sales Tax
Off'icer for the assessment years 1973-74 to 1976-77. The Department
moved revision petitions before the High Court against tbe order of the
F Appellate Tribunal. The High Court accepted tbe revision of lbe
Department and set aside the order of the Tribunal. Hence these ap-
-+
peals by tbe assessee.

II was contended by the appellaJil (i) that the liability of an agent
is co-extensive with that of principal and its liability cannot be higher
G than
,. .tb<lt of principal;
. (ii) that it is contrary to the principle underlying
rule 9(k) of the Kerala General Sales Tax Act whereunder the turnover
of sales or purchases made by a dealer through bis agent in respect of
~
which tax bas been paid by tbe agent, is excluded from bis taxable
turnover and (iii) that the asserwe bas been placed in a financial predi-
cament in that it bas to pay be surcharge from out of the meagre
H commission of 1% limited by lb statute.
CARDAMOM PLANTERS ASSCN. v. D.C. OF S.T. 721

Dismissing the appeals, this Court, A

HELD: The Surcharge Act does not envisage a fresh deter).nina-
tion of the assessee's turnover at all. It prescribes nothing more than a
simple arithmetical calculation of the prescribed percentage on the
sales-tax determined as payable by the assessee for that year. It does not
permit the computation of the surcharge, for whatever reason, on a B
part only of the tax detc;mined as payable by the assessee for the year in
question. It does not contemplate any dissection of the turnover into
transactions on behalf of various principals by reference to their indi-
\ vidual liability to pay either sales tax or surcharge. The contentions
~urged on behalf of the petitioner create a number of difficulties and or
about a very simple procedure, evolved by the statute to meet the present c
situation. It brought the Commission agent within the definilio~ of a
dealer and made his aggregate turnover liable to tax. But i.t provided at
the same time that the turnover so included and taxed in the hands of
the agent should be excluded from the turnover of the principal, where
he is separately assessed. [726C-D, 727E-F, 728C]
D
Rule 9(k) confers an exemption not on the Commission agent
but on the Principal and does not help the assessee. [728D]

( The rate of tax on any type of goods being uniform irrespective of
the turnover, the turnover in regard to that item will get assessed only
at one place: either in the hands of the principal or in the hands of the E
agent but not both. [7280]

A suggestion was mooted before us that the hardship to the
assessee on this account is so substantial that this requirement should
he held to be an unreasonable restriction violating Article 19. This
is a new contention involving investigation into facts which this F
Court is not inclined to permit the assessee to raise here for the first
time. [728G-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3261-
64 of 1988.
From the Judgment and Order dated 3. 7.1987 of the Kerala High G ·
Court in T.R.C. Nos. 54 to 57 of 1983.

A.K. Ganguli and C.N. Sreekumar for the Appellant.

A.S. Nambiar and K.R. Nambiar for the Respondents.
H
The Judgment of the Court was delivered by
722 SUPREME COURT REPORTS [1989] 3 S.C.R.

A RANGANATHAN, J. M/s. Cardamom Planters' Association, j
Bodinayakanur, (hereinafter referred to as 'the society') appeals from
orders of the Kerala High Court upholding its liability to the levy of
surcharge under the Kerala (Surcharge on Taxes) Act, 1957, as
amended in 1970.

B The Kerala General Sales Tax Act, 1963, imposes sales tax on
every dealer whose total turnover for any year exceeds a specific sum.
The sum prescribed was initially Rs.10,000 but was gradually stepped
up to Rs.20,000 in 1971, Rs.25,000 in 1976, Rs.35,000 in 1980,
Rs.50,000 in 1981, Rs.75,000 in 1982 and Rs.1 lakh in 1984. The ex-_J
pressions 'dealer', 'taxable turnover', 'total turnover' and 'turnover'
C are d;;fined in section 2 of the Act. The relevant portions of these
defimtions read as follows:

Section 2(viii)

"Dealer" means any person who carries on the business of
D buying, selling, supplying or distributing goods, executing
works contract, transferring the right to use any goods or
supplying by way of or as part of any service, any goods
directly or otherwise. whether, or for cash or for deferred \
payment, or for commission, remuneration or other valu-
able consideration and includes. ·
E
(b) xx xx xx

(c) a commission agent, a broker or a del credere agent or
an auctioneer or any other merchantile agent, by whatever
name called, who carries on the bussinClSS of buying, sel-
F ling, supplying or distributing goods (executing works con-
tract, transferring the right to use any goods or supplying
by way of or as part of any service, any goods) on behalf of
any principal."

Section 2 (xxv)
G
"taxable turnover" means the turnover on which a dealer I
shall be liable to pay tax as determined after making such ..,
deductions from his total turnover and in such manner as
may be prescribed .....

H Section 2(xxvi)
-··_,_,

CARDAMOMPLANTERSASSCN. v. D.C. OFS.T. [RANGANATHAN,J:I 723
....
"total turnover" means the aggregate turnover in all goods A
of a dealer at all places of business in the State, whether or
· not the whole or any portion of such turnover is liable to
tax ........ .

Section 2(xxvii)
B
"turnover" means the aggregate amount for which goods
are either bought or sold, or supplied or distributed, by a
dealer, either directly or through another, on his own

\- account or, on account of others, whether for cash or for
deferred payment or other valuable consideration, pro-
vided that the proceeds of the sale by a person of agri-
c
·r cultural or horticultural produce grown by himself or
grown on any land in which he has an interest whether as
owner, usufructuary mortgagee, tenant or otherwise,, shall
be excluded from his turnover.

Explanation (i) "Agricultural or horticultural produce" D
shall not include-

xxx xxx xxx

(ii) tea, coffee, rubber, cardamom or timber.
E
xxx xxx xxx

In 1957, the Kerala Legislature introduced a surcharge on sales
tax. Section 3 of the Kerala Surcharge on Taxes Act, 1957 reads as
~- follows:
F
"The tax payable under the Kerala General Sales T11X Act,
1963, shall, in the case of a dealer whose turnover exceeds
Rs. 30 ,000 a year, be increased by a surcharge at the rate of
five per centum of the tax payable for that year and the
provisions of the Kerala General Sales Tax Act, 1963 shall,
as the case may be, apply to the levy and collection of the G
said surcharge."

Kerala Act 40 of 1976 stepped up the rate of surcharge by amending
section 3( 1) to read as follows:

(I) The tax payable under the Kerala General Sales Tax H
Act, 1963, shall, in the case of a dealer whose turnover-
I
724 SUPREME COURT REPORTS [1989] 3 S.C.R.

(a) is not less than one lakh rupees but does not exceed ten \..
A. 1
lakhs rupees in a year, be increased by a surcharge at the
·rate of five per centum, and

(b) exceeds ten lakhs rupees in a year, be increased by a
surcharge at the rate of eight per centum,
B
of the tax payable for that year and the provisions of the
Kerala General Sales Tax Act, 1963, shall apply in relation
to the said surcharge as they apply in relation to the tax
payable under the said Act. - _)

We may note here two important features of the latter Act. the ·
c first is that, unlike sales tax which the dealer is entitled to get
reimbursed from the purchaser of the goods sold by him, the surcharge ,,,I
has to be borne by the dealer himself, for sub-section (2) of section 3 of
the Surcharge Act prohibits the dealer from collecting the surcharge
payable by him under sub-section ( 1) on pain of prosecution under
D sub-section (3). The second is that while a dealer might be liable to
sales tax at different rates on the turnover of the different goods dealt
in by him, he has to pay a surcharge calculated on the amount of the
sales tax payable by him in respect of his total dealings throughout the
year.

The assessee is a society registered under the Societies' Registra-
E
tion Act. Its members are cardamom growers in the State of Kerala.
Under the Cardamom Act (Act 42 of 1965), read with the Cardamom
(Licensing & Marketing) Rules, 1977, no person is entitled to carry on
business as auctioneer, dealer or exporter of cardamom except under
and in accordance with the terms and conditions of a licence issued
under the Act and Rules. One of the conditions of the grant of licence J
F
to a person as an auctioneer is that he "shall not charge more than one
per cent of the sale price as commission for the services rendered by
him". It is common ground that it is the society that has obtained the
relevant licence for this purpose and that the individual cardamom
growers who are members of the society have no such licence.
G The society conducts weekly cardamom auction sales at two
places, Santhanpara and Bodinayakanur. The planters leave their pro-
duce with the society. The produce of all the growers is mixed together
and put to auction. It is open to the planters to be present at the
auction. If any planter desires to sell at a specific price he can express
his opinion in advance to the association. If he wants to withdraw his
H lot put up for sale he could do so. Stitching charges and miscellaneous
: 1'

CARDAMOMPLANTERSASSCN. v. D.C. OFS.T. [RANGANATHAN,J.J 725

charges are to be paid to the society. The society collects 1% as com- A
mission out of the sale proceeds from each of the planters. Besides sale
of cardamom, which constitutes the major part of its turnover, the
society also sells other ·goods such as gunnies, pesticides, sprayers,
manure and the like.
-y
It is contended on behalf of the appellants that the society has B
sold the goods only in its capacity as a commission agent for various
principals and that, on the general principles of agency, an agent like
\ the assessee can be liable to surcharge ofily to the saine extent as the
'-rprincipal whom it represents. Hence it cannot be made liable for any
'surcharge in respect of the sales effect by it on behalf of principals
whose sales through the society do not exceed the limits set out in s. C
3( 1) of the Surcharge Act.

The above contention was accepted by the Tribunal in the ap-
peals against the assessments made on the society for the assessment
years 1967-68 to 1969-70. The sales tax assessments of the society for
1973-74 to 1976-77 were completed by the'Sales Tax Officer on the D
basis of the Tribunal's order. These assessments were, however, set
aside by the Deputy Commissioner of Sales tax who was of the opinion
- ·'"'i that the society was liable to pay surcharge on its aggregate turnover in
each of these years and he directed accordingly. The assessee prefer-
red appeals to the Appellate Tribunal from the orders ~f the Deputy
Commissioner: The Tribunal allowed the appeals by a common order E
dated 3rd November, 1982 following its order for the earlier assess-
ment years. It· set aside the revisional orders passed by the Deputy
Commissioner and restored the assessments made by the Sales Tax
[ Officer for the assessment years 1973-74 to 1976-77. The High Court,
1- on revision by the Department, has set aside the orders of the Tribunal
· and restored the orders of the Deputy. Commissioner. Hence these F
appeals.

We are unable to see any flaw in the High Court's reasoning. The
present assessee is clearly a dealer within the meaning of the statute,
particularly in view of the inclusive part of the definition contained in
clause ( c). This is also the finding of the Tribunal and is also admitted G
by the assessee. Likewise, the provisions of S. 5 of the Sales Tax Act
and S. 3 of the Surcharge Act, read with the definitions of the words
'turnover' 'taxable turnover' and 'total turnover', leave no doubt that
the assessee's taxable turnover has to be determined by taking the
aggregate price of all the goods sold by it. There is no statutory war-
rant for breaking-up the sales turnover of the assesse.e by reference to H
~ .. ~
726 SUPREME COURT REPORTS (1989) 3 S.C.R.

A the turnover of the principals on whose behalf it deals. Also, a logical
corollary of the assessee 's argument would be that, even in respect of
tax, the society can be assessed to sales tax only on the aggregate
turnover relating to those of its principals who are liable to tax under
section 5 of the Act. The High Court has rightly pointed out that the
assessee had not claimed, for purposes of sales tax, that the turnover
B of goods dealt with by it on behalf of principals who did not have a
Y-
taxable turnover should be excluded. If this be so, the High Court
observes rightly, it is difficult to see on what principle the assessee can
seek, in the matter of surcharge, the exclusion from its taxable)
turnover, of the turnover of principals who would riot have been sub-
jected to a surcharge if they had directly sold the goods entrusted by ·
C tShem to the assessee for sale. This is particularly so because the . ..\_ _.
urcharge Act does not envisage a fresh determination of the asses-
see' s turnover at all. It prescribes nothing more than a simple arith-
metical calculation of the prescrilied percentage on the sales tax
determined as payable by the assessee for that year. There can be no
doubt about this figure. The statute does not permit the computation
D of the surcharge, for whatever reason, on a part only of the tax
determined as payable by the assessee for the year in question.

On behalf of the assessee, objection has been taken to the levy of ,_,._
surcharge in the manner in which it has been levied on three grounds:

E 1. The general principle of law is that the liability of an agent is
co-extensive with that of the principal and his liability to tax or
surcharge, in respect of transactions put through on behalf of a
principal, cannot be higher than that which the principal would
have.himself incurred had he directly sold the goods;
_).
F 2. It is contrary to the' principle underlying rule 9(k) of the
Kerala Sales Tax Rules under which "the turnover of sales or
purchases made by a dealer through his agent in respect of which
tax has been paid by the agent" is excluded from his taxable
turnover;

G 3. The assessee has been placed in a financial predicament
because all that the assessee can get out of the sales iS the com-
mission which cannot exceed 1% of the turnover and, since the
statute has prohibited it from collecting any part of the surcharge
from the purchasers or the principals the society, has to meet the \•
surcharge liability out of its meagre commission earnings.
H
We are unable to see how these contentions can help the assessee
_f.

C~RDAMOM PLANTERSASSCN. v. D.C. OF S.T. [RANGANATHAN, J.] 727

to overcome the surcharge levy. The general principle of the law of A
agency, as rightly pointed out by the High Court, cannot prevail in the
face of the statutory provisions. The assessee's contention, upheld by
the Tribunal in its earl' er order, is this:

" ..... an agent is as many dealer as he has principals
an agent can be assessed ... only on the aggregate of the 8
turnover relating to principals who are liable to tax under
section 5 and surcharge can likewise be levied only in
respect of the turnover of the principals where total
turnover is not less than Rs.30 ,000."

This will also mean that, after the amendment of s. 3 of the Surcharge c
Act in 1976 that the agent will be liable to a surcharge at 8% in respect
of the turnover on behalf of principals whose total turnover exceeds
Rs.10 lakhs, at 5% in respect of the turnover on behalf of principals
having turnover of •between Rs. I lakh and Rs.10 lakhs and no
surcharge in respect of the turnover on behalf of principals with
turnovers of less than Rs. l lakh. This may be equitable but it clearly D
amounts to running a coach and pair through the statutory provisions.
As already pointed out, these provisions clearly treat a commission
agent as a dealer and make him liable to sales tax as well as surcharge
in respect of his entire turnover. The Act does not contemplate any
dissection of this turnover into transactions on behalf of various princi-
pals by reference to their individual liability to pay either sales tax or E
surcharge.

The question of statutory interpretation apart, it will easily be
seen that the assessee's contention, which is equally applicable to the
levy of both sales tax and surcharge, would make the whole Act
unworkable. A commission agent will be dealing on behalf of F
hundreds of constituents and each of his constituents may be dealing
not only through him but also through several other agents. The trans-
actions may not be confined to the territories of one State and may be
spread over the entire Indian sub-continent. The sales through diffe-
rent agents may be of different goods attracting liability to tax at
different rates. It may be that a principal whose sales through one G
commission agent may not come upto the limits of turnover for levy of
tax or surcharge may have been dealing through other agents and, if
assessed directly, may have a turnover exceeding those limits. In this
state of affairs, it will be absolutely impracticable, if not impossible,
for a Sales Tali Officer. having jurisdiction over one particular com-
mission agent to make his sales tax assessment on the basis suggested H
728 SUPREME COURT REPORTS [1989] 3 S.C.R.

by the assessee. That would require the collection of data, in the
A
assessment of every commission agent, regarding the entire sales
turnover of each of his constituents who may or may not be assessed by
the officer assessing the particular commission agent. The assessment
order on the commission agent would then have to be split up, as it
were , into a number of parts each containing the determination of y-
B turnover, tax and surcharge qua each of the constituents. These
determinations require exercises which cannot be practically under-
taken by an officer assessing a commission agent but can easily be
undertaken by the different officers assessing the principals. That is
why the statute evolved a very simple procedure to meet the situation.,)
It brought the commission agent within the definition of a dealer and
made his aggregate turnover liable to tax. But it provided at the same
c time that the turnover so included and taxed in the hands of the agent ---\ -
should be excluded from the turnover of the principal, where he is
separately assessed. This is rule 9(k). Rule 9(k) confers an exemption
not on the commission agent but on the principal and does not help the
assessee. So far as sales tax is concerned, this rule provides complete
D protection against double taxation. The rate of tax on any type of
goods being uniform irrespective of the turnover, the turnover in
regard to that item will get assessed only at one place: either in the
hands of the principal or in the hands of the agent but not both. The j- _
treatment of the commission agent as a dealer no doubt means that an
agent will be taxed where his turnover exceeds the relevant limits even
E though some or all the principals who sold through him may have
turnovers below those limits. But he is not really affected as he can
collect the sales tax from the purchasers and thus reimburse nimself.

The difficulty that has arisen in regard to the surcharge stems )
principally from the requirement that the society has to pay it out of its -.f
f funds and cannot reimburse itself either from its vendees or its princi-
pals. This difficulty has been further accentuated by the fact that, in
regard to cardamom, its earnings are limited to a small commission
which c~nnot be varied by it at its desire. These considerations cannot
however justify a different interpretation as the statutory provisions
are clear.
G
A suggestion was mooted before us that the hardship to ,_the ---ij
assessee on this account is so substantial that this requirement should
be held to be an unreasonable restriction violating article 19. This is a
new contention involving inv ·stigation into facts which we are not
inclined to permit the assessee o raise here for the first time. We may,
H however, mention that duri· l the hearing of these appeals, we
"!, CARJ)AMOM PLANTERS ASSCN. v. D.C. OF S.T. [RANGANATHAN, J.] 729
ii<Ji
>.,...(,
~·'i
adjourned the appeals to enable the assessee to move the State in this A
behali but we were told that its efforts were unsuccessful. We need
hardly say that the assessee will be at liberty to pursue the matter, put
forward its difficulties and seek to persuade the State Government to
either reduce or dispense with the surcharge in regard to cardamom
sales or to sanction an increase in the rate of commission chargeable by
the assessee on its cardamom sales and, failing such efforts, to
8
chanenge the validity of the levy for the future, if so advised, in ap-
propriate proceedings.

~. In the circumstances, we affirm the view taken by the High Court
and dismiss these appeals. We, however, make no order as to costs.
c
'j Y.Lal Appeals dismissed .

. -· ·-1'

!