1994 (12) TMI 296

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..... learned Member of the Tribunal seriously erred to consider that the consignment of 140 bags of tea was sent from Ahmedabad to Pilibhanga by the seller to the purchaser, in fact these bags were sent for sale on commission to the petitioner and this mistake in the basic fact resulted in the passing of the impugned order. He also contended that there was no question of sending pro forma invoices along with the goods, if the tea had been sold and in that case cash memos or the bills would have been attached and this fact was duly disclosed the same day by the partner of the petitioner-firm Smt. Rama Devi Maloo in her affidavit. He further contended that it is not in dispute that at the time of checking, the driver had shown to the checking .....

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..... Anti-Evasion, Bikaner, stating that the goods were despatched from Ahmedabad for sale to her firm. She was not at all cross-examined on her affidavit. Therefore, there was no reason to disbelieve this uncontroverted and unrebutted affidavit. Reference to Mehta Parikh and Co. v. Commissioner of Income-tax [1956] 30 ITR 181 (SC) at page 187; AIR 1956 SC 554, para 13, Sohan Lal Gupta v. Commissioner of Incometax [1958] 33 ITR 786 at page 791; AIR 1958 All. 21 at page 23 may be made here. All necessary details of the consignment are mentioned in the pro forma invoices. If the pro forma invoices did not bear the stamp of the sales tax outpost, Abu Road, it was not the fault of either the consignee or the consignor. It was the fault of the author .....

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..... in-between them. In view of this, it is very difficult to endorse the views of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer. 5.. It is clear from the aforesaid discussion that the revision petitioner involved question of law, namely, whether under the above noted facts and circumstances the transfer of 140 bags of tea from Ahmedabad to Pilibhanga involved sale as defined in section 2(o) of the Act or was simply transactions in-between the principals and commission agent involving no sale in-between them. The revision petition is perfectly maintainable. 6.. Accordingly, revision petition is allowed. The order of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer, dated June 1, 1992, is set aside. Penalty, if covered, wil .....

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