SUPREME COURT OF INDIA

Before:- S.P. Bharucha, N. Santosh Hegde and Y.K. Sabharwal JJ.

Civil Appeal No. 3997 Of 1999. (Arising out of S.L.P.(C) No. 13071/1999) With S.L.P.(C) Nos.12149-52/1999 .D/d. 1.5.2001.

M/s. Sharma Coal Company - Appellant

Versus

The Commnr., Sales Tax, U.P. - Respondent

Uttar Pradesh Trade Tax Act, 1948, Section 2(h-1)(i), Explanation II and Section 2(C)(ii) - Sales Tax- Status of Assessee - Determination whether or not assessee is a commission agent necessary for determining his turnover - Tribunal on the basis of Deputy Commissioner (Appeals) accepted assessee as coal commission agent- High Court on analysing facts held assessee is not a commission agent - Held that it is not for High Court to determine question of facts in such proceedings when Tribunal had not itself considered the facts - Matter remanded back to Tribunal for reconsideration.

[Paras 5 and 8]

ORDER

S.P. Bharucha, J. - We have heard learned counsel and are of the view that the matter must stand remanded to the U.P.Trade Tax Tribunal to determine whether or not the assessee in the present case is a commission agent. The High Court, in the judgment and order under challenge, has held that the assessee is not a commission agent but we do not find in the order of the Tribunal that went upto the High Court any such finding in that behalf. Such finding is essential for determining whether or not the freight in question is includible in the turnover of the assessee.

2. The appeal, therefore, is allowed. The judgment and order under challenge is set aside and the matter remanded to the Tribunal to be heard and decided afresh in the light of what we have stated above.

3. No order as to costs.

C.A.No......./2001 arising out of S.L.P.(C) No.13071/99:

4. Leave granted.

5. It appears that in this case the Tribunal had proceeded upon the basis that the Deputy Commissioner (Appeals) had accepted the assessee as a coal commission agent for the two years in question. The High Court, however, having analysed the facts, came to the conclusion that the assessee was not a commission agent in the real sense of the word for the purchase and sale of the coal for it was acting on its own account. It, therefore, held that the amount of freight in question was includible in the assessee's turnover. It is not for the High Court to determine questions of fact in this kind of proceeding. At the same time, it appears that the Tribunal had not itself considered the facts but only proceeded upon the basis of the findings of the Deputy Commissioner. It is, therefore, apposite that the judgment and order under challenge and the order of the Tribunal that came up before the High Court be set aside and the matter remanded to the Tribunal for reconsideration on the question whether, for the two years in question, the assessee was or was not a commission agent.

6. The appeal is allowed accordingly and the matter remanded to the Tribunal.

7. No order as to costs.

S.L.P.(C) Nos.12149-52/99:@@

8. On the application of learned counsel for the petitioner, the special leave petitions are dismissed as withdrawn.

Appeals allowed petitions dismissed.