1973 (9) TMI 83

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..... ., at Rampur. For the assessment year 1961-62 a dispute arose as to whether the assessee made an inter-State sale of cotton yarn amounting to Rs. 22,11,171.34. The case of the assessee was that the sales had not taken place at Rampur but had taken place at Delhi and the sales were made through one Messrs. Rama Shanker Company of Delhi. The case for the revenue was that there was no inter-State sale and the alleged sales at Delhi were a colourable transaction and the goods were actually sold in U.P. It was further alleged by the revenue that the assessee had taken such a stand to evade tax. The case of the assessee was not accepted by the assessing authority who imposed the tax of Rs. 44,223.44 on the turnover of Rs. 22,11,171.34, the allege .....

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..... bove. It would thus be seen that while the contention of the assessee has been that the sales did not take place in U.P. and, as such, he was exempt from payment of U.P. sales tax on the sale of the cotton yarn in dispute, the case of the revenue was that the sales had taken place in U.P. and, as such, the assessee was not entitled to the exemption of sales tax. The assessee sought exemption on the ground that there was an inter-State sale of cotton yarn through Messrs. Rama Shanker of Delhi and, as such, he was not liable to pay any sales tax. The stand taken by the revenue, on the other hand, is that since the alleged sales did not take place in Delhi it should be presumed that the sales took place in U.P. and, consequently, the assessee .....

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..... tate takes place and it is not an inter-State sale as defined in section 3 of the Central Sales Tax Act. Onus lies on the department to prove it. In the instant case, the assessee had denied the sale of cotton yarn in U.P., his case being that all cotton yam produced by it was to be sold to the Delhi dealer under an agreement of selling agency. When the department did not accept the sale of cotton yarn in Delhi, it was incumbent upon it to prove that the sale took place in U.P. The department does not seem to have addressed itself to this question at all. There is no finding as to when, where and to whom the sale was made. A sale in U.P. cannot be presumed if it is denied. It must be proved by evidence and relevant material. This has not be .....

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