Rajasthan High Court - Jodhpur
C.T.O.,Cir.-C, Jodhpur vs M/S Dinesh Pouches Ltd on 23 September, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. SALES TAX REVISION PETITION NO.256/2005
C.T.O., Circle 'C', Jodhpur
Vs.
M/s. Dinesh Pouches Ltd.
Date of Order :: 23.9.2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. D.K. Godara for Mr. V.K. Mathur, for the petitioner/s.
Mr. Varun Singhvi for Mr.Dinesh Mehta, for the respondent/s.
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BY THE COURT:
This revision petition is directed against the judgment dated 16.10.2003 passed by the Rajasthan Tax Board, Ajmer ('Tax Board'), whereby the appeal filed by the Revenue has been rejected.
The facts in brief are that the respondent was assessed to tax on its turnover for the year 1996-97 on the basis of return filed by it. While doing so, the learned Assessing Officer ('A.O.') by his assessment order dated 27.9.1999 found that certain goods worth Rs.12,18,000/- were shown to have been transferred to assessee's Hyderabad Depot under the Excise Invoice No.535 dated 11.7.1996, but the goods were directly supplied to M/s. City General Stores, Gulaburga and in fact, the goods never reached Hyderabad Depot and consequently, 2 treating the transfer as inter-State sale, the A.O. levied additional tax of Rs.1,21,800/- @ 10%.
Aggrieved against the order dated 27.9.1999, the assessee filed an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur ('Dy. Comm.') and it appears that certain documents in relation to the transaction were also filed to substantiate its claim of depot transfer. The Dy. Comm. by its order dated 13.9.2001 by taking into consideration i.e. the books relating to the Hyderabad Branch, the bilty by which the goods were transported from Hyderabad to Gulburga, bill issued by Hyderabad Depot for M/s City General Stores, Gulburga and on coming to the conclusion that as the goods did not move from Rajasthan to Gulburga, in pursuance to a pre-existing contract of sale, the same cannot be termed as an inter-State sale and allowed the appeal filed by the assessee.
Aggrieved the Department went in appeal before the Tax Board. After hearing the parties, the Tax Board observed thus :
"I have carefully considered all the arguments of both the learned counsel and have also gone through all the facts available on the record of this Case. I have also studied with due regards the rulings cited by the learned counsel while arguing his case before me. The only point that has been raised before me for consideration is whether the goods worth Rs. 12,18,000/- shown to have been depot transferred by the respondents were directly supplied by them to M/s City General Stores, Gulburga in the course of their inter-State trade and commerce within the meaning of section 3(a) of the Act. The facts on record make it clear that (i) the goods in question were transferred to their Hyderabad Branch in vehicle No.RNS 4197 under Bilty No.457 dated 11.7.96 of M/s New Sindhi Transport Company, (ii) that the goods were delivered to the Hyderabad Branch and this is found recorded in the books of the Branch, (iii) that the same goods were further sold by the Branch vide its Bill No. 37 dated 15.7.96 to M/s City General Stores, Gulburga along with AP Government's ST Form 10 No. 8858651, (iv) that 4% CST was charged in above Bill by the Branch, (v) that the goods were further despatched 3 by the Branch from Hyderabad to Gulburga in vehicle No. RNS 4197 and a freight of Rs. 14,175/- was also paid on account of this and (vi) that the payment of the goods supplied to the Gulburga firm was also received by the Branch and accounted for in its books of accounts. In the face of all these facts, it is difficult for me to support the case of the learned AA that the goods depot transferred by the respondents were in relation to their inter-State sale in favour of M/s City General Stores, Gulburga. Learned DGA has also failed to dig any hole in above facts and I too do not find any evidence on record to establish any nexus between the respondents and M/s City General Stores, Gulburga so as to prove that the goods in question moved outside the State as a result of any pre-existing contract of sale between the respondents and the Gulburga firm. In these circumstances, in my view, learned AA was not jusitified simply on the basis of his presumptions in treating Depot Transfer of the goods in question as inter-State sale of the respondents for the purpose of levying tax under the Act. All the rulings cited by the learned counsel for the respondents adequately support the case of the respondents and, therefore, learned DC (Appeals) does not seem to have committed any error in setting aside illegal levy of tax in this case contrary to facts as well as the law."
It was submitted by learned counsel for the petitioner that from a bare look at the order passed by the A.O., it is apparent that goods moved from Rajasthan to Gulburga directly and the assessee only with a view to take advantage of depot transfer has manipulated the records. It was submitted that no documents were produced before the A.O. in support of the claim. In fact, in the reply filed by the assessee it was indicated that "the goods were imfact sent to Hyderabad Depot and on instruction of the above Depot, the goods were sold to M/s. City General Stores, Gulburga." Consequently, it was submitted that the orders passed by two authorities i.e. Dy. Comm. as well as the Tax Board deserves to be quashed and set aisde.
On the other hand, learned counsel appearing for the respondent submitted that the finding recorded by Dy. Comm. and the Tax Board are findings of fact, which have been recorded 4 after taking into consideration the material available on record. It was submitted that absence of pre-existing contract of sale between the respondent-assessee and Gulburga firm is sufficient to come to the conclusion that the transfer was merely a Depot transfer and not an inter-State sale. It was prayed that revision petition be dismissed.
I have considered the rival submissions.
The Dy. Comm. after taking into consideration the documents produced by the assessee has recorded a categorical finding that the sale took place from the Hyderabad Depot and CST @ 4% was recovered on the said sale. Further the absence of pre-existing contract for sale was also noticed by the Dy. Comm., while passing the order dated 13.9.2001. The said findings recorded by the Dy. Comm. though questioned by the Department have been upheld by the Tax Board by its impugned judgment dated 16.10.2003 as noticed here-in-before.
A perusal of the judgment dated 16.10.2003 passed by the Tax Board would reveal that the petitioner - Department has not questioned the validity and / or authenticity of the documents, which were produced before the Dy. Comm., which form the bedrock of passing of the order by the said appellate authority. Further the findings based on those documents are essentially findings of fact and the absence of pre-existing contract of sale between the assessee and the Gulburga firm has been the case throughout i.e. even the A.O. has failed to point out any such pre-existing contract, in absence whereof the sale cannot be treated as inter-State sale.
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In view of the above, there is no substance in the revision petition and the same is, therefore, dismissed.
No costs.
(ARUN BHANSALI), J.
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