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TMI Blog1972 (1) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, mentioned in question No. (i), on the ground that the sales were in the course of inter-State sales and not intra-State sales. The said sum constituted of two items, namely, Rs. 3,53,623.85 from the sale of steel structures to the railway administration, Izatnagar, in the State of Uttar Pradesh, and Rs. 20,390 from the sale of machinery to sugar mills in the said State. When the matter came up for hearing on 12th February, 1968, before R.L. Narasimham, C.J., (as he then was) and B.N. Jha, J., it was conceded by the learned counsel for the assessee that so far as the turnover of Rs. 20,390 was concerned, the claim that the sales were inter-State sales could not be sustained and the reference was pressed only in respect of Rs. 3,53,623.85. On hearing the parties, the learned judges felt that the findings of fact on the record, as they were, were not sufficient to enable them to answer the question. They accordingly directed the Tribunal to state a supplementary case on the question as to whether, so far as the turnover of Rs. 3,53,623.85 was concerned, there was an obligation to move the goods from Muzaffarpur to Izatnagar arising out of the contract of sale or mutual understandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion of this court by the Tribunal. True it is that the Member, Board of Revenue, has discussed in detail the arguments advanced on behalf of the assessee with respect to the meaning of the term "turnover", but it has itself further said that the discussion was academic. Before taking up for consideration the contentions advanced on behalf of the assessee as to the meaning of the term "turnover" in the Act, the Member, Board of Revenue, observed as follows: "The short answer to this claim is that there is no finding of fact by the learned Deputy Commissioner, who says, he could not come to any finding because the assessee was not able to produce any detailed papers on the basis of which he could satisfy him about the claim. It would appear that no price was originally settled when the order was placed on 26th April, 1957. From some correspondence produced by the assessee, it would appear that the price was provisionally fixed at Rs. 8,346 per wagon on 13th December, 195 7, later changed to Rs. 10,000 on 18th April, 1958, again to Rs. 10,840 on 7th April, 1959, reduced to Rs. 10,595 on 27th November, 1959, and raised again to Rs. 10,898 on 24th February, 1960. These changes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were at Muzaffarpur and, therefore, the transactions were taxable under the Act. Before the learned Deputy Commissioner, it was contended on behalf of the assessee that the goods which were sent to Izatnagar were on selfconsignment-basis and, as such, levy of State sales tax was unjustified. The learned Deputy Commissioner held that as before the delivery, the assessee had already received payment to the extent of 10 per cent. of the sale price, which indicated that the sales had already been completed before the goods were delivered to the railway administration, the question of exemption from the levy of State sales tax in respect of those despatches did not arise. The learned Member, Board of Revenue, rejected this item of the claim on the ground that the assessee had made contradictory claims in respect of this item in his grounds of appeal before the Deputy Commissioner and the grounds of revision before the Board of Revenue. According to the learned counsel for the department, this observation of the learned Member, Board of Revenue, also amounts to a finding of fact that the assessee failed to establish that the goods worth Rs. 3,53,623.85 were supplied to the railway ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Member, Board of Revenue, referred to above, cannot be construed a finding of fact, as contended by the learned counsel for the department and the learned Member, Board of Revenue, erred in not going into the aforesaid claim of the assessee. 7.. Reliance was placed by the learned counsel for the department on the decision in Educational and Civil List Reserve Fund No. 1, Udaipur v. Commissioner of Income-tax, Delhi and Rajasthan, New Delhi[1964] 51 I.T.R. 112; A.I.R. 1964 Raj. 59., in which it was held that the Tribunal could not legitimately ask for an advice on a question which it was called upon to consider and which it had deliberately refused to decide, although it had an opportunity of deciding it. The decision was given on a reference under section 66 of the Income-tax Act, 1922. The instant case is not a case of deliberate refusal by the Member, Board of Revenue, to decide the question under consideration and, therefore, this decision has got no application to the facts of the case before us. In Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co., Ltd.[1961] 42 I.T.R. 589 (S.C.); A.I.R. 1961 S.C. 1633. , Venkatarama Aiyar, J., who delivered the leading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be urged before the High Court. These decisions of the Supreme Court do confirm the correctness of the view taken in the preceding paragraph by me that question No. (i) of the reference is a question arising out of the order of the Member, Board of Revenue. 8.. In the alternative, the learned counsel for the department argued that at best the question which could be referred to the court was, whether the Member, Board of Revenue, was right in refusing to decide the question on the ground of inconsistency in the grounds of appeal and revision. According to him, the Tribunal ought not to have referred the main question whether the sale amounting to the aforesaid sum was rightly taxed as intra-State sale. In view of the decisions of the Supreme Court referred to in the preceding paragraph, this contention of the learned counsel for the department has to be rejected. 9.. It was also contended by the learned counsel for the department that this court erred in its order dated the 12th February, 1968, in directing the Tribunal to consider "such other evidence as the Tribunal may permit the parties to lead" in making the supplementary statement and the supplementary statement is incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filed two affidavits; one of them is by the Chief Accounts Officer of the assessee and he states that a copy of the contract between the assessee on the one part and the North Eastern Railway on the other was produced before the assessing officer, the Deputy Commissioner and the Member, Board of Revenue. The other affidavit is by Shri R.N. Tikmani, a lawyer of the assessee. He also states on oath that a copy of the aforesaid document was produced before the Deputy Commissioner and the Member, Board of Revenue. As the arguments in the case had been concluded earlier, the matter was at first brought under the heading "to be mentioned", and then put up for further hearing. On that date, further arguments were heard on behalf of both the parties. Though the department had sufficient time, it did not file any counter-affidavit denying the claim made in these affidavits. In view of the practice prevailing in the department that documents and books produced by an assessee are not marked as exhibits and are returned to him after their examination and the assessee refiles them before the appellate or revisional authority if he files an appeal and revision, I find no reason to doubt what i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia: (i) common intention of the parties to the transaction to export; (ii) actual exportation; and (iii) obligation to export, the obligation may be either of the seller or of the buyer. In Nilgiri Plantations' case(3), while dealing with the obligation to export, the Supreme Court observed that the obligation may arise by reason of statute, contract between the parties or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. In a recent Bench decision of this court, to which I was a party, in Commissioner of Commercial Taxes, Bihar v. M/s. Bhag Singh Milkha SinghTax Case No. 69 of 1966, dated 11th October, 1971; since reported at [1972] 29 S.T.C. 463., the principles laid down in the aforesaid decisions were applied to cases of inter-State transactions within India. For claiming exemption from tax on the ground of sales in the course of inter-State trade, the following three facts must co-exist: (i) common intention of the parties to the transaction to transport from one State to another within the country; (ii) actual transportation; and (iii) obligation to transport, the obligation may be either of the sel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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