9911796707
TMI Blog1988 (2) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the sales tax department that no revision lies before this Court against an order passed under section 17 of the Act as a revision only lies to this Court against an order passed under section 14B of the Act under section 15(1) of the Act. It was also objected that one revision could not have been filed against two different orders. A third objection was also that if the revision is to be treated against the order dated 15th May, 1987 passed in appeal, then it is barred by time. Faced with this situation, the learned counsel for the petitioner submitted that he would not press this revision against the order dated 14th August, 1987, by which the rectification application was dismissed. He would confine this revision against the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment and having considered the circumstances of the case, I am of the opinion that the delay in filing the revision against the order dated 15th May, 1987 deserves to be condoned and is hereby condoned. I have heard the learned counsel for the parties on the merits of the revision. Before I come to the decision it may be mentioned that the assessee is a registered partnership firm and a registered dealer under the Act. He had effected certain sales through his commission agent and wanted exemption from payment of sales tax on those sales by virtue of section 9B(2) of the Act. He, however, could not furnish the form S.T. 41 in support of his claim either before the assessing authority or the appellate authority or the Tribunal and hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for the assessee to produce the form S.T. 41. The contention of the learned counsel for the petitioner is that as a matter of fact the production of form S.T. 41 is only one of the modes for proving that the tax in respect of the goods had been paid by the commission agent and, therefore, the principal is entitled to exemption from being taxed on those sales. Non-production of form S.T. 41 cannot be fatal to the claim of the principal to the exemption if by other evidence he can establish that as a matter of fact the goods transferred by him to his commission agent had been sold by the commission agent and that the commission agent had collected and paid tax on those sales. A perusal of section 9B(2) of the Act, which reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not say that it is the only mode of proving this. It leaves it open to the principal to resort to other proofs in order to satisfy the assessing authority that the tax on such goods had been paid by the commission agent. The other sub-rules of rule 42A also do not in any way restrict the proof to the production of form S.T. 41. It may also be pointed out that in rule 42A(2) of the Rules, while referring to the mode of proving the fact of payment of tax by the commission agent the word "may" has been used and not "shall", which also supports the above view that this method of proof is only one of the ways in which principal can establish the fact that the tax had been paid by the commission agent and in order to facilitate the proof of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and examining him on oath or affirmation; (b) compelling the production of documents; and (c) issuing commission for examination of witnesses. The assessing authority or the appellate authority could very well have exercised those powers in order to arrive at a conclusion whether the contention of the assessee that the tax had been paid by his commission agent in respect of the sales of goods which had been transferred to the commission agent and even if they had not fully been satisfied in this respect on the basis of the documents filed by the assessee, they could have further looked into the record of the assessment of the commission agent in order to find out whether as a matter of fact the commission agent had collected and paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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