9911796707
TMI Blog1977 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... as a dealer for payment of Central Sales Tax it failed to do so. A notice was, therefore, served in the assessee under r. 12(6) of the CST (O) Rules calling upon it to produce the books of accounts. The assessee produced the books of accounts and other papers before the AO and took the plea that the Factory at Jaipur Road was the branch of the main factor at Calcutta. Some pieces of thin wood were despatched to the main factory to Calcutta by way of branch transfer for the purpose of manufacture of sheets of ply wood. Therefore, the assessee did not enter into transactions with the main office at Calcutta for sale of ply wood in course of inter-state trade and commerce. The AO did not accept the above plea and held that the assessee had so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t each consignment for checking facility at the Jamsola Check Gate where tax amounting to Rs. 995.00 has been collected form the appellant by the Check Gate Officer. But the Amending Act 1972 of the CST Act which was effective from 1st April, 1973 prescribes that claims of branch transfer should be supported by 'F' declaration forms. In the instant case unfortunately no 'F' from could be filed by the appellant. Therefore, I am unable to agree with the learned counsel that filing of 'F' form is not obligatory to claim branch transfer. Since claim of a branch transfer is to be supported by 'F' forms and in the absence of such froms I am unable to accept the claims of the learned counsel as branch transfer. So, the amount of Rs. 14,580.63 is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch transfer lies on the assessee which could be discharged only by production of the declaration in Form F. It is necessary to examine the contentions. 6. Sub-s. (1) of s. 6-A which is relevant is quoted below for easy reference : "Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale the burden of proving that the movement of these goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Sales-tax is not leviable in respect of transaction of transfer of goods form a head office or a principal to a branch or an agent or vice versa as these do not amount to sales. This aids evasion in that dealers try to show even genuine sales to third parties as transactions of this type. It is proposed to provide that the burden of proving that the transfer of goods in such cases is otherwise than by way or sale shall lie on the dealer who claims exemption from tax on the ground that there was in fact no sale." In the notes on clauses accompanying the statement of objects and reasons run thus : "This clause seeks to insert a new s. 6-A in the principal Act for purpose of providing that the burden of proving that any movement of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that transfer of goods from one state to another is a branch transfer, the burden of proving that fact lies on him. But it is for consideration in what manner the said burden can be discharged. The use of words 'may furnish' occurring in s. 6-A is of grant significance and will mean in relation to the declaration in form F that production of such certificate is directory and not mandatory. If it was intention of the legislature to make production the declaration in form F mandatory, the words "shall furnish" should have occurred. This shows that the branch transfer can be proved either on production of declaration in form F or by any other evidence. For example, if by production of the books of account of the branch office, as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to satisfy him by production of the books of accounts and other evidence that the transaction were not inter-state sales but were branch transfer from the branch factory at Jaipur Road to the main factory at Calcutta. As the assessee discharged the burden or proof in the above manner and s. 6-A being directory and not mandatory in nature, in my considered opinion despite non-production of declaration in Form F it must be held that the transactions were not inter-state sales but were branch transfers from the branch factory at Jaipur Road in Orissa to the main factory at Calcutta. This being the position, the assessee is not liable to be assessed with Central Sales Tax. Consequently, the question of imposition of penalty does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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