Allahabad High Court
Bareilly Rosin And Turpentine ... vs Commissioner Of Sales Tax on 21 April, 1989
Equivalent citations: [1989]74STC397(ALL)
JUDGMENT Anshuman Singh, J.
1. These three revisions at the instance of the assessee are directed against the judgment dated April 25, 1987 passed by the Sales Tax Tribunal, Bareilly Bench I, partly allowing the appeals of the assessee for the assessment years 1970-71, 1971-72 and 1972-73 (all Central) and dismissing the appeal of the Revenue for the assessment year 1971-72 (Central). Since all the revisions arise out of a common order passed by the Tribunal, they are being disposed of by a common judgment.
2. The assessee is a registered partnership firm carrying on the business of manufacture and sale of rosin and turpentines. It is registered under the U.P. Sales Tax Act (hereinafter referred to as "the Act") and the Central Sales Tax Act. The assessee disclosed its total gross turnover for the assessment year 1970-71 at Rs. 11,74,152.39, for the assessment year 1971-72 at Rs. 9,53,527.84 and for the assessment year 1972-73 at Rs. 4,02,775.19 under the Central Sales Tax Act. The Sales Tax Officer passed the assessment orders for all the three assessment years and while passing the assessment orders treated the entire consignment sales as inter-State sales except for the assessment year 1972-73. The assessee, feeling aggrieved against the assessment orders passed by the Sales Tax Officer for all the three assessment years preferred first appeals under Section 9 of the Act before the Assistant Commissioner (Judicial), Sales Tax, who dismissed the appeals for the assessment years 1970-71 and 1972-73 and allowed the appeal in part for the assessment year 1971-72.
3. The assessee feeling dissatisfied with the orders of the Assistant Commissioner (Judicial) filed second appeals under Section 10 of the Act before the Tribunal and the Revenue also feeling aggrieved against the order of the Assistant Commissioner (Judicial) allowing the appeal in part filed by the assessee for the assessment year 1971-72 preferred second appeal before the Tribunal which, as already stated above, partly allowed the appeals of the assessee and dismissed that of the Revenue for the assessment year 1971-72 (Central).
4. I have heard Sri Bharatji Agarwal, learned counsel appearing for the assessee and Sri V.M. Sahai, learned counsel appearing for the Revenue. The substantial question, which is involved in these revisions, is whether the consignment sales made by the assessee during the assessment years in question were inter-State sales or not. Counsel for the assessee urged that there was no material on record to prove that the movements of goods were made from U.P. to outside the State of Uttar Pradesh in pursuance of any prior order of contract and in the absence of such material the Tribunal was not justified in coming to the conclusion that the consignment sales made by the assessee were inter-State sales. To strengthen his submission he further submitted that a chart showing the disputed challans and the affidavits of ex-U.P. agents were filed before the Tribunal but the Tribunal examined only two items shown in the chart submitted by the assessee and on that basis it came to the conclusion that all the consignment sales were inter-State sales. Learned counsel for the assessee vehemently urged that a duty was cast on the Tribunal to have examined each and every transaction made by the assessee and assuming that even if two items in the chart could be termed as inter-State sales, the Tribunal could not form a general opinion about all the items without examining each of them. In support of his contention he placed reliance on a five Judges' Bench decision of the Supreme Court in Tata Engineering and Locomotive Co. Limited v. Assistant Commissioner of Commercial Taxes, Jamshedpur [1970] 26 STC 354, which was also mentioned in the written argument filed by the assessee before the Tribunal and the Tribunal has also, while repelling the contention of the assessee, referred to the aforesaid decision in its judgment. The Tribunal after referring to the decision of the Supreme Court in Tata Engineering and Locomotive Co. Limited [1970] 26 STC 354 has made a futile attempt to distinguish the said decision in the present case. Though the Tribunal records a finding that the ratio decidendi laid down in the case of Tata Engineering and Locomotive Co. Limited [1970] 26 STC 354 (SC) has not been strictly applied to the present case but on the basis of the two transactions and on mere generalities rejected the claim of the assessee. Learned counsel canvassed that in fact the order of the Tribunal is in the very teeth of the decision of the Supreme Court in the case of Tata Engineering and Locomotive Co. Limited [1970] 26 STC 364 wherein it has been held that proper procedure to be followed by the assessing authority is to examine each individual transaction before recording a finding that the sales made by the assessee were inter-State sales exigible to tax under the provisions of the Act. The Supreme Court in that case observed :
Another serious infirmity in the order of the Assistant Commissioner was (a matter which even the Advocate-General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a covenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature and the appellant's representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigible to tax under the provisions of the Act.
5. A perusal of the order of the Tribunal clearly indicates that each and every transaction of the assessee was not examined and on the basis of two items and the modus operandi of the business of the assessee it arrived at the conclusion that the consignment sales made by the assessee were inter-State sales.
6. Mr. V.M. Sahai, learned counsel appearing for the Revenue, has frankly and, in my opinion, rightly conceded that the law laid down by the Supreme Court in Tata Engineering and Locomotive Co. Limited [1970] 26 STC 354 has not been properly applied by the Tribunal to the facts of the present cases and the attempt made by it to distinguish the same is wholly fallacious.
7. For the reasons stated above I am of the view that the order passed by the Tribunal cannot be sustained and is liable to be quashed.
8. In the result, the revisions succeed and are allowed. The order passed by the Tribunal is set aside and it is directed to remit the cases back to the assessing authority for deciding the cases afresh in the light of the observations contained in the judgment and also the law laid down by the Supreme Court in Tata Engineering and Locomotive Co. Limited [1970] 26 STC 354. Parties shall bear their own costs.
9. Let a copy of this order be sent to the Tribunal concerned as contemplated under Section 11(8) of the Act.