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TMI Blog1989 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case, even though the stock position statement was on record of the case? The brief facts figuring in the statement of facts drawn by the Tribunal are that M/s. Haryana Iron and Steel Rolling Mills, Hissar, the assessee-petitioner, is a partnership firm engaged in the manufacture of various items of iron and steel in its factory situated at Hissar. The assessee indulges in the sale of manufactured items in the State of Haryana as well as outside the State. It has its head office at Hissar and a branch office at Delhi. It is registered under the General Sales Tax Act, applicable to Haryana (hereinafter referred to as "the Haryana Act") as well as under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act"). The assessee filed four quarterly returns relating to the assessment year 1972-73, declaring a gross turnover of Rs. 17,15,860.10, out of which it claimed exemption regarding transactions of the value of Rs. 5,10,664.90 as transfers by the assessee from its head office at Hissar to its branch office at Delhi where the sale of the goods of the above value are claimed to have been made to various purchasers. The Assessing Authority while fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that in view of the provisions of section 6A of the Central Act, the burden of proof that the movement of these goods was not occasioned as a result of prior contract of sale, was on the assessee. The conduct of the assessee in not producing the stock register of its Delhi branch office was used as basis for raising the presumption that the goods were never received by the Delhi office and were delivered directly to the buyers at Delhi. The selling of goods in the same lot on the same day to the dealer at Delhi also weighed with the Tribunal. The assessee then claimed a reference to the High Court on the ground that the Tribunal while rejecting the appeal had wrongly resorted to the provisions of section 6A of the Central Act which came into force on 1st April, 1973. It was claimed that the provisions of section 6A of the Central Act would be operative prospectively only and not retrospectively. It was also maintained that the Tribunal had wrongly drawn the inference that the goods having moved in pursuance of a pre-existing contract solely on the ground that the goods were sold on the day on which these were received in the branch office at Delhi and in the same lot of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority, may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods. (2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall be deemed for the purposes of this Act to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed form obtained from the prescribed authority, along with the evidence for deciding such a case. Sub-section (2) of this section provides the passing of the relevant order by the Assessing Authority on its satisfaction. Obviously, the Central Sales Tax (Registration and Turnover) Rules, 1957, were required to be amended in the light of the provisions of section 6A. Rule 12(5) was inserted in order to provide that the declaration referred to in section 6A shall be in form "F". It was further provided that form "C" in force before the commencement of the said rules may continue to be used up to 31st day of December, 1980, with suitable modifications. Thus, in view of the contents of the provisions of section 6A, there is no escape but to conclude that the legislature intended the operation of this special provision to be applicable prospectively and not retrospectively. There is considerable force in the contention of Mr. Viney Mittal, learned counsel for the assessee, that the burden of proof regarding the tax liability prior to the insertion of section 6A above was on the Revenue and that mere non-production of documents should not in itself lead to the presumption that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Division Bench of Andhra Pradesh High Court in Ram Krishna Kalwant Rai v. State of Andhra Pradesh [1983] 54 STC 1, relied upon by the learned counsel for the petitioner that mere adverse inference drawn by the Assessing Authority for non-production of the relevant record is not itself sufficient to prove the taxability of the assessee because the ultimate burden of proving the taxability lay upon the department, but it is of no help to the assessee in the case on hand as the taxability of the assessee to inter-State sales tax is not solely based on the presumption of an adverse inference due to the non-production of the relevant records by the assessee, but on other circumstances also like the goods having been sold in the same lot and on the same day on which they were received at the branch office at Delhi. Simply because the octroi cess on the goods and that the goods were booked with the carriers in the name of the assessee branch at Delhi, it cannot be said that the goods were moved by the head office of the assessee from Hissar to its branch office at Delhi in view of the ratio of the decision of the Supreme Court in English Electric Company of India Ltd. v. Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it appears that the assessee had not assailed the order of the appellate authority in enhancing the amount of alleged transfer of goods to the above referred extent. If that is so, then even though this question has been referred to this Court for opinion by the Tribunal and the statement of facts do reveal that the appellate authority had enhanced the taxability to the inter-State sales tax of the assessee than the one assessed by the Assessing Authority had the Revenue having failed in appeal, but all the same this Court is not required to answer this question as it did not arise out of the order of the Tribunal. The findings of the Supreme Court in Commissioner of Income-tax, West Bengal II v. Smt. Anusuya Devi [1968] 68 ITR 750; AIR 1968 SC 779, can be safely referred in this regard. In that case the High Court had passed an erroneous order under section 66(2) of the Income-tax Act, 1922, directing the Tribunal to state case on the question not arising out of the order of the Tribunal. Under these circumstances, while reversing the order of the Calcutta High Court, the Supreme Court held as under: "It cannot be said that if an order is passed by the High Court calling upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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