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TMI Blog2017 (1) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(2) cannot be denied to petitioner - petition allowed - decided in favor of petitioner. - S. B. Sales Tax Revision Petition No. 28, 29 of 2013 - - - Dated:- 16-12-2016 - Jainendra Kumar Ranka, J. Mr. Vivek Singhal, Mr. R.B. Mathur counsel for petitioner Ms. Meenal Ghiya } counsel for respondent ORDER 1. The instant petitions are directed against order dt 15.10.2012 passed by the Rajasthan Tax Board, Ajmer, in Appeal Nos.300/2011/Jaipur and 299/2011/Jaipur, whereby the appeals of petitioner have been dismissed. 2. The brief facts relevant for disposal of the petitions are that a survey was conducted at the business premises of the assessee and also simultaneously at M/s. Rajasthan Transport Co. Pvt. Ltd., Sanganer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s had taken place and transit ends, and any sale by the consignee thereafter will be a local sale and benefit of sec. 6(2) will not be available, and taking into consideration the said Circular as well as further Circular bearing no.98- 99/01 dt 15.4.1998, held that tax was leviable as local sale and accordingly, imposed tax, surcharge as well as penalty. 5. The matter was assailed before the Dy. Commissioner (Appeals), who taking into consideration the prayer made by the assessee that no proper opportunity was granted, accordingly remanded/set aside the matter back to the AO. The AO again after taking into consideration the reply, did not interfere and repeated what was held earlier. 6. The matter was assailed before the Dy. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even if the Circulars relied upon by the authorities are not taken into consideration, sec. 6(2) is quite clear of the Central Sales Tax Act that constructive delivery had been taken and once constructive delivery of the goods has been taken, then it has to be presumed that the sale was complete and transit ends. Learned counsel contended that the modus operandi of the assessee was that it was searching for buyers and the same was kept pending with the transporter to evade local tax which was payable. Learned counsel also contended that no plausible or reasonable explanation was offered as to why the goods were lying with the transporter for 41 to 80 days. On the one hand the assessee was incurring heavy demurrage but was not prepared to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue such circulars by the learned Commissioner giving a particular interpretation of law purportedly binding on all the assessing authorities is doubtful. There is no specific provision in the Sales Tax Act, either under the RST Act or under the CST Act, empowering the Commissioner to issue such circulars, as against such powers conferred under Section 119 of the Income Tax Act on the Central Board of Direct Taxes. Even Section 119 of the Income Tax Act, which empowers the highest administrative body under the Act, namely CBDT, by way of its proviso restricts and provides that no such order, instruction or direction shall be issued so as to require any Income Tax authority to make a particular assessment or dispose of a particular case in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer of documents of title to the goods made under Section 6(2) of the Act, though requisite conditions of Section 6(2) of the Act are fulfilled by the dealer and such circulars have already been held to be ultra vires and have been quashed and in absence of any other material justifying the denial of exemption under Section 6(2) of the Act to the assessee, the impugned order of the Tax Board allowing such exemption to the assessee is not required to be interfered with in the present revision petitions filed by the Revenue. 12. Taking into consideration the aforesaid view of this court, all the three authorities have applied the same two Circulars in disallowing the claim of assessee which in my view may not be proper taking into co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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