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TMI Blog2024 (9) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, the provisions of section 49 (3) were done away by deleting the same by Notifications dated 13.09.2012 and 17.12.2012 with effect from 01.03.2012. The law which was applicable with respect to the definition of the word dealer and whether the non production of the documents relating to the title of the goods i.e. duly signed two copies of Lorry Challan/E-generated Lorry Challan , document of title to goods/GR/bilty, invoice/challan etc., could be made basis to assess tax liability has already been considered by the Hon ble Supreme Court in various judgments. In the present case, after the Notification of 13.09.2012, and 17.12.2012, the State of Uttarakhand had established check-posts at Kashipur, Rudrapur, Haldwani, Dehradun, Haridwar and Rishikesh, and if they are non functional, then mobile squad has also been deployed. In the case of the revisionist when the goods were transported, there was no checking done on the way as the goods were being transported on the railways coach, and hence, there was no checking done during the transportation of these goods, and hence, when there no checking was done during the transportation of the goods, the revisionist being a tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee/revisionist went in the appeal before the learned J.C. (A) and who vide judgment and order dated 19.06.2012, allowed the appeal and deleted the assessed tax for the assessment year 2008-2009. 3. Against the above said order, the revenue went in the appeal before the Tribunal. The learned Tribunal proceeded to examine the issue involved in the appeal. The first issue was whether the revisionist/assessee is a dealer or not. The learned Tribunal refers to the Railway Act 1890 or Act 1989 being a central Act. In paragraph 8 of the order, it has been observed that the Ministry of Finance, Government of India, after a series of the deliberations, the Railways decided to issue permits (permission letters), in late eighties from the office of DRM concerned in favour of the Tax Officers, to keep the extracts of records kept in goods/parcel office of the Railways. The Railways Board issued an order dated 16.10.1985 to the effect that the Tax Officers get the extracts of Railways parcel/goods records but most of the addresses of the consignors and those of consignees were found fake. The issue was again taken up at the level of the Empowered Committee of State Finance Ministers, New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to evade the tax on the goods. 6. Vide notification no. 829/2012/181(120)/XXVII (8)/2008, dated 13.09.2012, the Rules were further amended and the transporters were made more accountable, responsible and answerable to the Department in respect of the goods transported. As per the above said notification, during the movement of the goods, the transporters will carry with him duly signed two copies of Lorry Challan/E-generated Lorry Challan , document of title to goods/GR/bilty, invoice/challan etc., and the copy of the Lorry Challan shall be preserved by the transporter till the end of two financial years. It is further observed that provisions of section 49 (3) were done away by deleting the same by notification dated 13.09.2012, and notification dated 17.12.2012 with effect from 01.03.2013. 7. The revisionist/assessee has brought goods from outside the State through Railways on the basis of the lease agreement, but has not kept any accounts from which the authenticity of the consignors, consignees and details of goods etc., might be verifiable/identifiable. After bringing the goods to the destination point, the declaration forms along with bill/beejak/challan/bilty etc., have neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing through the evidence given by the assessee, the imposition of the tax has been made. The assessee did not produce the declaration form before any railway check posts nor before any circle office of the Department before giving the delivery of the goods to the consignees. Hence, he was deemed to be a dealer and had the imported goods from Delhi and without any evidence an attempt had been made to evade payment of tax. 10. The Tax Department had simply asked the assessee/revisionist to furnish the correct verifiable/identifiable details of the consignors and consignees and description of the goods loaded in the SLR which the assessee did not furnish. 11. In the facts of the present case, the goods related to the assessment year 2008-2009, and proceedings for assessment for sale of the imported goods outside the State were initiated and vide assessment order dated 01.09.2009 under section 26 of the Act, on the basis of best judgment fixed the taxable turnover of tax liability of Rs.1,90,62,680/-, was created. 12. The issue to be examined is whether the Notification dated 13.09.2012 can be made applicable in the case of the present revisionist, whose goods were seized way back in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jab and Haryana High Court, whereby the provisions of Section 38 of the Haryana General Sales Tax Act, 1973, were held to be ultra vires, was upheld and the appeal filed by the State was dismissed. Section 38 of the Act, dealt with furnishing of the information by clearing or forwarding agent, who are the agent only tranporting the goods of the consignors, who has sold the goods and the assessee was only engaged for transporting the goods from the consignors to the consignee. Section 38 of the Act, reads as under:- 38. Furnishing of information by clearing and forwarding agents, etc.- (1) Every clearing or forwarding agent, Dalal or any other person transporting goods, within the State, who, during the course of his business, handles documents of title to goods for or on behalf of any dealer, shall furnish to the assessing authority the particulars and information in respect of the transactions of the goods in such form and manner, as may be prescribed. (2) No clearing or forwarding agent, Dalai or any other person transporting goods within the State shall carry on his business unless he obtains from the assessing authority, on payment of a fee not exceeding fifty rupees, a licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has observed as under:- 20. There can be no doubt that the State Legislature would be entitled to impose sales tax upon a person who carries on the business of selling goods and who has in the customary course of business authority to sell goods belonging to the principal. A clearing or forwarding agent, 'dalal' or person transporting goods does not carry on the business of selling goods and does not have, in the customary course of his business, authority to sell goods belonging to the dealer whose goods he books or receives. As we have already stated, there has to be a reasonable and proximate connection between the transaction of sale and the clearing or forwarding agent, 'dalal' or person transporting goods before the State Legislature can, in exercise of the power to levy sales tax, enact legislation concerning him. We are not satisfied that there is such close and direct connection between the transactions of sale of goods by a dealer and the clearing or forwarding agent or 'dalal' who books or receives such goods or a person who transports such goods within the meaning of the said Section 38. 18. The Hon ble Allahabad High Court in the judgment deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 2007 SCC Online All 2376, Satish Chandra Mittal Vs. Assistant Commissioner (Assessment), Trade Tax, Hapur, in this case the assessee was a booking agency at Hapur, District Ghaziabad, and certain consignments of goods were received in Hapur, and were released by petitioner from the petitioner s agency office to the persons carrying counterfoil of the goods receipt. The Tax Department on verification found that some of these consignees were not residing or carrying on business at the address mentioned in the goods receipt, and in this backdrop notice was given to the petitioner who was a city booking agency. 22. The defence taken by the assessee was that such goods are normally released (1) by the Railways at the railway station or parcel office (2) that city booking agency at their office to the person appearing at the office for taking delivery along with goods receipt. Therefore, neither the Railways and nor the city booking agency under an obligation to physically verify the address of the consignee or consignors. Even the consignors normally deliver the consignments to the Railways at their booking office and normally consignments are not collected by the railways from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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