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TMI Blog2009 (11) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 17-11-2009 - K. Raviraja Pandian And M. M. Sundresh,JJ. For the Petitioner : Mr. Haja Nazirudeen Special Government Pleader (Tax) ORDER M. M. Sundresh, J The writ petition has been filed by the Revenue being aggrieved against the order passed by the Appellate Tribunal rejecting the appeal filed by the Revenue filed against the order of the Appellate Assistant Commissioner. 2. The point in controversy is the disallowance of turnover in a sum of Rs.3,57,41,932.63 as the consignment sale which claim was rejected by the Assessing Officer and treated the transaction as inter-state sale falling under Section 3(a) of the Central Sales Tax Act, 1956 is correct or not. 3. The brief facts leading to the case in a nutshell are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption was claimed as consignment sale. The department filed a further appeal before the Sales Tax Appellate Tribunal (Additional Bench), Chennai in S.T.A.No.506 of 1999, which has been dismissed in favour of the assessee. Hence, challenging the same the Revenue has filed the present writ petition. 4. The Assessing Officer has declined the exemption of the assessee for treating the transactions as consignment sales on the ground that the agents of the assessee have sold the goods on the date of the arrival from the State of Tamil Nadu and there was no evidence to show that the consignment received by the agents were taken to the stock and thereafter sold to various customers. Both the First Appellate Authority as well as the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intimation given in Form-F by the assessee is not true, genuine and based upon false representation. Therefore, in the absence of any incriminating material contrary to the particulars provided by the assessee, the Assessing Officer cannot hold the declaration given under Form-F is not correct. The findings to the contrary by the Assessing Officer must be borne out by records and evidence but not on mere speculation and surmises. 7. In the judgment reported in VOL.95 1994 STC 273 [SRI GANESAN TRADERS v. UNION OF INDIA] the Hon'ble High Court was pleased to hold that the burden of proof is on the assessee to prove to the satisfaction of the Assessing Officer that particulars furnished in Form-F are true and a genuine. The said issue was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Division Bench of Karnataka High Court reported in VOL.126 2002 STC 458 [STATE OF KARNATAKA v. JINDAL ALUMINIUM LIMITED] wherein the Division Bench was pleased to hold that a mere sale transaction effected by the agents on the very same day of arrival in itself cannot be the sole basis to treat the same as an inter-state sale. Hence on a consideration of the above said legal position, we are of the opinion that the transaction involved in the present case is merely a stock transfer from the assessee to its agents and therefore, the same is not an inter-state sale. 10. The issue can be looked into from another angle as well. As observed above, the Appellate Assistant Commissioner as well as the Appellate Tribunal have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred a writ petition in the High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the appellate court and restored that of the trial court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the appellate court. Though not specifically stated, the phraseology employed by the High Court in its judgment goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the appellate court. In Surya Dev Rai v. Ram Chander Rai this Court has ruled that to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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