K.S. Paripoornan, J.
1. The Revenue is the petitioner in this batch of revisions. The same assessee is the respondent in all the four cases. We are concerned with the assessment years 1981-82, 1982-83, 1983-84 and 1984-85. The respondent-assessee is a dealer in hill produce at Kozhikode. For the first year, the assessing authority included in the total turnover of the assessees their turnover relating to consignment sales and levied surcharge at 8 per cent on the ground that the total turnover exceeded Rs. 10 lakhs. For the subsequent three years, the purchase turnover of the assessees was fixed including the commission amounts received by them from their non-resident principals. These two aspects were objected to by the respondent-assessee, before the Appellate Tribunal. The Appellate Tribunal accepted the plea of the assessee and allowed the appeals filed by the respondent-assessee. Feeling aggrieved, the Revenue has come up in revisions.
2. We heard the learned Senior Government Pleader, Mr. N.N. Divakaran Pillai. The learned Government Pleader submitted that the turnover representing the consignment sales will come within Section 2(xxvi) of the Kerala General Sales Tax Act, 1963 and so the Sates Tax Appellate Tribunal was in error in holding that the consignment sales will not come within the purview of the definition of the 'total turnover' in Section 2(xxvi) of the Kerala General Sales Tax Act. There is no force in this plea. It will be useful to remember, that under Section 5 of the Kerala General Sales Tax Act, charge is levied on the taxable turnover of a dealer for a year. The Act states that every dealer other than a casual trader or agent of a non-resident dealer whose total turnover for a year is not less than one lakh rupees and every casual trader or agent of a non-resident dealer whatever be his total turnover for the year, shall pay tax on his taxable turnover for that year. A perusal of the definitions of the 'taxable turnover', 'total turnover' and 'turnover' in Sections 2(xxv), 2(xxvi) and 2(xxvii) of the Kerala General Sales Tax Act, will show that unless consignment sales will be taken in by the definition of 'total turnover', it cannot be reckoned for the purpose of levy of surcharge under Section 3 of the Kerala Surcharge on Taxes Act, 1957 (Act 11 of 1957). Sections 2(xxv), 2(xxvi), 2(xxvii) and Section 5 of the Kerala General Sales Tax Act are as follows :
'2(xxv) 'taxable turnover' means the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed, but shall not include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India ;
2(xxvi) 'total turnover' means the aggregate turnover in all goods 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, including the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India ;
Explanation.--Notwithstanding anything contained in any other provision of this Act, in the case of goods which are taxable at the point of last purchase in the State by a dealer liable to tax under Section 5 and which are held as closing stock on the last day of any financial year, the amount for which such goods were purchased by the dealer shall be deemed also to be a part of his total turnover for the subsequent year or each of the subsequent years until such goods are either sold by him in the State or such purchase acquires the character of last purchase in the State in the hands of such dealer, and in case such purchase acquires the character of last purchase in the State in the hands of such dealer, the turnover in respect of such purchase shall be liable to tax in the year in which the purchase acquires the character of last purchase ;
2(xxvii) 'turnover' means the aggregate amount for which goods are either bought or sold, 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, provided that the proceeds of the sale by a person of agricultural 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.
5. Levy of tax on sale or purchase of goods.--(1) Every dealer (other than a casual trader or agent of a non-resident dealer) whose total turnover for a year is not less than one lakh rupees and every casual trader or agent of a non-resident dealer, whatever be his total turnover for the year, shall pay tax on his taxable turnover for that year.'
Section 3 of the Kerala Surcharge on Taxes Act, 1957 (Act 11 of 1957), reads as follows :
'Levy of surcharge on sales and purchase taxes.--(1) The tax payable under the Kerala General Sales Tax Act, 1963, shall, in the case of a dealer whose turnover--
(a) is not less than one lakh rupees but does not exceed ten lakh 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,
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.'
It is clear that total turnover will take in the aggregate turnover in all goods 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. It will also include the turnover of purchase or sale in the course of inter-State trade or commerce. It also takes in the turnover relating to the purchase or sale in the course of export of the goods outside India or in the course of import of the goods into the territory of India. Consignment sale is not a sale within the State ; nor is it a sale in the course of inter-State trade or commerce as defined in Section 3 of the Central Sales Tax Act, 1956. It is a sale outside the State altogether. It conies under Section 6A of the Central Sales Tax Act. It will not be taken in the definition of the 'total turnover' occurring in Section 2(xxvi) of the Kerala General Sales Tax Act. Since it is so, it cannot be reckoned in fixing the total turnover of the assessee, to levy surcharge under the Kerala Surcharge on Taxes Act, 1957. The Appellate Tribunal was justified in holding so.
3. Relating to the rest of the three years, the only question posed before us was, whether the Appellate Tribunal was justified in holding that the commission paid by the non-resident principals to the assessee will not form part of the purchase turnover for assessment purposes. The goods dealt with by the assessee are liable to be taxed in the State at the last purchase point. The assessee purchased the goods and they send these goods to their non-resident principals. By sending the goods to the non-resident principals, the purchase by the assessee was complete. The purchase price was also paid. Any commission received by the assessee from the principals after the purchases are over, cannot form part of the purchase turnover of the assessee. The Appellate Tribunal has held so. We see no error in the said reasoning and conclusion.
4. In this view of the matter, the Appellate Tribunal was justified in holding that the commission given by the non-resident principals to the assessee will not form part of the purchase turnover of the assessee. The appellate order passed by the Sales Tax Appellate Tribunal, dated 28th October, 1988, does not suffer from any error of law.
5. We see no reason to interfere. These four revisions are without merit. They are dismissed.