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TMI Blog1965 (1) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ajasthan, the purchases are made from these two States for the purpose of exporting cotton out of the country, the modus operandi of the petitioner-firm being that it enters into contract with the foreign buyers to supply cotton on various future dates and in pursuance of these contracts, it purchases cotton from various places in India. This according to the writ petition, establishes direct integration of the two activities of purchase and export. Emphasis has been laid on the fact that the branch office at Bhatinda in reality represents the head office at Bombay, the former having no separate entity or existence. It is, therefore, the Bombay firm which makes purchases of cotton in the State of Punjab through its branch office at Bhatinda, with the result that the principal party making purchases is the Bombay firm. Assessment for the year 1962-63 which is impugned in this writ petition was made by the Assessing Authority on 23rd January, 1964, vide annexure 'A' to the writ petition. During this year, the petitioner-firm made purchases worth Rs. 11,77,676-18 and claimed before the Assessing Authority that the cotton which had been purchased for about Rs. 10,78,283-40 had been pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territory of India.................." Section 29 of the Punjab Act so far as relevant reads as follows: "29. (1) Notwithstanding anything contained in this Act,- (i)... ... ... ... ... ... (ii) Where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territory of India......" The question raised is undoubtedly of constitutional importance, but it has been dealt with by the Supreme Court on more occasions than one and, therefore, the legal position appears to me to be fairly well-settled and is for all practical purposes beyond the pale of any serious controversy. The difficulty which sometime arises is in the applicability of the law to the facts of an individual case. Shri Sibal has placed his reliance, to begin with, on a decision of the Supreme Court in State of Travancore-Cochin v. S.V.C. Factory[1953] 4 S.T.C. 205; A.I.R. 1953 S.C. 333. , where the majority view has been summed up and it has been pointed out that sales by export and purchases by import fall within the exemption under Article 286(1)(b) as held in an earlier decision of the Supreme Court in State of Travancore-Cochin v. Bombay Company Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bombay Company Ltd.(1) An unreported decision by a learned Single Judge of this Court in New Rajasthan Mineral Syndicate v. The State of PunjabCivil Writ No. 914 of 1962 dated 9th October, 1964; since reported at [1965] 16 S.T.C. 534., has also been relied upon. The petitioner's counsel has while developing his argument laid a certain amount of stress on paragraphs 6 and 7 of the written statement filed on behalf of the respondents and has asserted that the averments made in paragraph 6 of the writ petition that evidence had been led before the Assessing Authority about the entire cotton having been exported out of India from Bombay have not been denied, with the result that on the existing pleadings before the Courts it must be held that the goods in question were actually exported. The observations of the Assessing Authority in the impugned order that there is no evidence to prove that the goods purchased in Punjab have been exported outside India is wrong. On behalf of the respondents, it has been forcefully asserted that there is no evidence on the record that the goods purchased have been exported outside India. The only evidence on the record relates to the consignment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave no possibility of a voluntary interruption without entailing a breach of the contract or an obligation arising from the nature of the transaction. It would thus postulate common intention on the part of the contracting parties to export the goods which must be actually followed by export and this, in my view, appears to be essential in order to constitute a sale in the course of the export of the goods. There must necessarily come into existence an obligation to export and there must also be an actual export pursuant to such obligation. Merely because a sale has been followed by the export of the goods sold does not by itself clothe the sale with the quality of its being in the course of their export. As I understand the argument of the learned counsel for the petitioner, he wants us to grant exemption to his client merely because goods purchased have been later exported from Bombay. This, as has been repeatedly explained by the Supreme Court, is not enough; nor is mere intention to export without an actual exportation, sufficient to constitute a sale in the course of export, because a sale by export involves a series of integrated activities commencing from the agreement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attending circumstances and facts to determine whether the sale in question has occasioned the export. On the material before us, it is not possible to treat this as a pure question of law on admitted or found facts which are final and binding on both parties. It has frequently been laid down by the Supreme Court that in taxation matters, normally a party should be left to have his grievance redressed in accordance with the machinery provided by the taxing statutes. It is relevant in this connection to bear in mind that normally, the High Court is not an appellate authority on facts under the Punjab General Sales Tax Act, and, therefore, challenge to questions of fact before this Court is not to be encouraged by too readily permitting resort to Article 226 which may have the effect of by-passing the machinery set up by the Legislature in its wisdom for enquiry and scrutiny into and decisions on questions of fact. Jurisdiction conferred by this Article is, in my view, not intended to supersede the jurisdiction and authority of the assessing hierarchy to deal with the merits of all the contentions that the assessee may raise before them. It would accordingly be inappropriate to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce its substance. The letter, as noticed earlier, is stated to have been written to some other assessee. From the plea, as contained in the writ petition, therefore, I am far from convinced that the said letter contains any direction which may be construed to be intended or purporting to exclude the application of an independent judicial mind either of the Assessing Authority or of the appellate authority. The impugned order clearly does not give me the impression that the Assessing Authority has not applied its own independent judicial mind and has merely obeyed an executive command of a superior authority. If in the letter to which reference has been made, the attention of the Assessing Authority has merely been drawn to the decisions of the Supreme Court or to the law laid down by the said Court, then I fail to see how any serious objection can be taken to that letter. Be that as it may, neither is the impugned order shown to be tainted with any such legal infirmity on its face as would attract this Court's constitutional power under Article 226 for setting it aside, nor is it shown that the appellate authority would not look at the evidence of this case on its merits in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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