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TMI Blog1952 (9) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... e of taxation under Section 4.....the sale of a car by a person who has registered as a dealer-may be for other com- modities-is clearly liable to sales tax." The fact is not disputed that the applicant is not a dealer in motor cars and that he did not mention motor cars in his application for registration among goods ordinarily purchased by him for resale. In the circumstances, if the Commissioner's view were to prevail, it would mean that sales of every item of the applicant's property, including, for example, his household furniture and kitchen equipment, which have no connection with his business as a dealer, will have to be included in his taxable turnover. We do not think that it could have been the inten- tion of Legislature to discriminate in this manner against a dealer in comparison to the ordinary citizen, who is not a dealer, in the exercise of his fundamental rights [vide Article 19(1)(f) of the Con- stitution] to dispose of his private property for which he feels he has no longer any use. Our attention, in this connection, has been drawn to an Australian decision, Deputy Federal Commissioner of Taxation for the State of South Australia v. Ellis Clark Limited(1) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to what has been stated in the application for revision, an attempt has been made to suggest in the course of arguments that these were taxes paid to the Municipal Committee for storing cloth in the ware-houses and that the account books did not show that the amount was included in the sale price. This is essentially a question of fact which cannot be urged in revision under Rule 57. We also note that on this question of fact the two Courts below have arrived at con- current findings. The third item is in respect of sales of plain glass sheets, such as are used for window panes and door panes. The Sales Tax Commis- sioner has upheld the interpretation of the Assessing Officer in including them under "glass-ware", appearing as part of item 14 of the unamended Schedule 1 to the Act. Under the proviso to Section 5, articles men- tioned in this Schedule are subject to a tax of 0-1-0 in the rupee of the taxable turnover. It has been urged on behalf of the applicant that plain glass sheets do not constitute "glass-ware" and should have been taxed at the ordinary rate of 0-0-6 in the rupee, mentioned in the main Section 5. In support of the contention, our attention has been draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Calcutta " 77,212-11-0 (c) Royal Trading Co., Calcutta " 24,323-7-3 (d) Udairam Laxminarain of " 17,984-2-3 Calcutta. Exclusion of all these amounts from the taxable turnover has been claimed for different reasons. In regard to (a)-Iswarmal Bhagwandas-exclusion has been disallowed on the ground that the sales took place on 2-9-47 when the vendee was still unregistered. He became a registered dealer on 11-10-47. The position in this respect, so far as the first quarter is concerned, has been fully examined in the Board's order in Hirji Govindji v. The Page No: 309 State(1); and the applicant's learned counsel is justified in urging that what matters is the date on which the application for registration was made and not the date on which he was actually registered by the authorities. Unfortunately, no information is available in the record regarding this date, nor has the applicant's learned counsel who promised to supply the information has done so up-to-date. In the circumstances, we have no option but to hold that sales for the amount in question were made to an unregistered dealer and have been rightly taxed. In regard to (b), the contention on behalf of the applicant is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are further obscure. The Assessing Officer has dismissed the case of despatches to the Royal Trading Co., Calcutta, in one sentence: "These are not obviously sales to registered dealers and have therefore been disallowed." The Sales Tax Commissioner has given some more details: ".....The appellant's contention is that the Royal Trading Co. was working as his agents, and the despatch of linseed was made to Calcutta, to be sold there. The appellant has no evidence to prove that these goods were sold out of the province. The goods were des- patched to the Royal Trading Co., Calcutta, whom the assessee calls to be his agent. As this so-called agent was free to sell the goods at any price, and settle the bargain with anybody he liked, and was thus responsible for any loss on account of bankruptcy of the buyer, he is actually not an agent, but the buyer." The learned Sales Tax Commissioner has reproduced the above almost verbatim from a report he called for and obtained from the Assessing Officer, after the appeal was instituted before him. We have been unable to find out wherefrom the Assessing Officer obtained the information which he passed on to the Com- missioner. When the case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale must be disclosed by the assessee himself, as they are matters within the personal knowledge of the assessee rather than that of any other person. Briefly and broadly he would say, the burden of proof on questions of law would be on the assessing authorities, but on questions of fact the burden inevitably is on the assessee. He has drawn attention to Sec- tion 114 of the Evidence Act which provides in illustration (g) that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. There is a great deal of force in these arguments and we would normally be inclined to accept them. But we cannot lose sight of the fact that the assessment in the case before us relates to the very first quarter after the coming into force of the Act, when neither the assessee nor the Assessing Officer could have been clear enough in their minds about the procedures and methods to be employed, nor could they have been fully aware of all the legal implications of several of the issues involved. Therefore, partly as a matter of grace and partly as a matter of equity, we would refrain from enforcing the principles suggested ..... X X X X Extracts X X X X X X X X Extracts X X X X
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