JUDGMENT Prakash Krishna, J.
1. These two revisions are directed against the common order dated 6-1-1997 passed by the Trade Tax Tribunal, Kanpur in two connected Second Appeal Nos. 201 of 1995 and 200 of 1995 for the assessment years 1987- 88(Central) and 1988- 89 (Central) The dealer opposite party is carrying on the business of manufacture and sale of Atta, Suji and Maida etc. The acceptance of books of account is not in dispute. The assessing authority on examination of books of account of the dealer opposite party rejected the claim of consignment sale to the tune of Rs. 22,71,560/- for the assessment year 1987-88 and Rs. 12,61,820/- for the assessment year 1989-90. It was held by the assessing authority that these sales were inter state sale.
2. Aggrieved against the aforesaid assessment orders the dealer opposite party preferred two separate appeals before the Dy. Commissioner (appeals) Trade Tax, who allowed the appeal by a common order dated 21-3-1995 and remanded the matter to the assessing authority with certain directions. Still feeling aggrieved against the aforesaid remand order the dealer opposite party preferred the aforesaid two Second appeals before the Trade Tax Tribunal who by the impugned order allowed both appeals and set aside the assessment order as well as the order of first appellate authority by recording a finding that on the basis of sale pattis produced before it transaction in question were not inter state sale but were consignment sale. Aggrieved against the aforesaid order the present revision have been filed by the department.
3. The only point raised in these revisions is that the Tribunal has committed illegality in allowing the Second appeals filed by the dealer opposite party in toto without addressing itself about the legality of the directions given by the first appellate authority while passing the remand order.
4. Heard learned counsel for the parties and perused the record.
5. Learned Standing counsel submitted that the Tribunal was not justified in accepting the documents which were placed before it for the first time during the course of argument. Indisputably, the goods were moved from the State of U.P. to outside State of U.P. and were delivered to the third party .Therefore there was a contract in between the dealer opposite party and the third party to whom the goods were delivered which occasioned the movement of the goods from the State of U.P. to another State namely West Bengal. Moreover the subject matter of appeal before the Tribunal was limited one. The Tribunal was required to adjudicate about the legality and propriety of remand order passed by the first appellate authority and if the Tribunal was not satisfied that in the facts and circumstances of the case the case ought not have been remanded to the assessing authority ,it was open to it to set aside the order of the first appellate authority with a direction to decide the appeal on merits. Elaborating the argument it was submitted that the Tribunal has committed an illegality in setting aside the assessment order as well as the order of first appellate authority and recording its finding that the transaction in question were not inter state sale. The Tribunal has failed to take into account various aspects of the case which were taken into consideration by the first appellate authority and thus committed illegality in reversing the order of the first appellate authority. On the other hand the learned counsel for the dealer opposite party, submitted that the findings recorded by the Tribunal that transaction in question were not inter state sale is based upon appreciation of evidence and as such no interference by this Court is called for. The Tribunal itself has examined sale patti and, as such, it has been established that movement of goods from the State of U.P. to West Bengal was not in pursuance of any contract for sale but it was the consignment sale and, as such, there is no legal infirmity in the order of the Tribunal.
6. I have given careful consideration to the respective submissions of the learned counsel for the parties and I find that it is difficult to uphold the impugned order of the Tribunal for the reasons more than one. The Tribunal has allowed the appeal mainly on two counts. Firstly, that the transaction in question is consignment sale and secondly, that the Deputy Commissioner ( appeals) while remanding the matter has not given any valid reason for remand. So far as first point is concerned, suffice it to say that the assessing authority after examination of books of account rejected the contention of the dealer opposite party and held that the transactions in question were inter state sale. The assessing authority in support of its order has given various reasons. It has recorded a finding which appears to be almost undisputed that the goods were sent by the dealer opposite party directly to the third party.
7. The movement of goods from the State of U.P. to the State of West Bengal is not in dispute. Section 3 of the Central Sales Tax Act defines inter state sale or purchases. Before a sale can be said to take place in the course of inter state trade or commerce following conditions must be fulfilled:
(1) that there was agreement to sell which contains stipulation expressed or implied regarding movement of goods from one State to another.
(2) That in pursuance of the said contract the goods, infact, were moved from one State to another; and (3) That ultimately concluded sale take place in the State where the goods are sent which must be different from the State from where goods were moved.
In order to determine whether the sale has taken place in the course of inter state trade or commerce, as held by Apex Court in the case of Ballabh gas Hula Chandra v. State of Orissa (1976) 37 STC 207 the matter has to be approached only after concluded sale has taken place because unless sale takes place or in other word agreement to sell merges into concluded sale, the question of application of the provision of Central Sales Tax Act does not arise at II because tax is on sale and not agreement to sell or the formal contract It has been further held in this case after analyzing clause (a) Section 3 of the Central Sales Tax Act that it would appear that before Section 3 can apply following fact must be established:
If these two conditions are satisfied it will become inter state sale on which tax can be levied under the Central Sales Tax Act. In the case in hand indisputably condition No. 1 is fulfilled, the only controversy remains as to whether sale occasioned movement of goods from one State to another. It was held by the assessing authority that the sale in question occasioned movement of goods from one State to another. The first appellate authority remanded the matter to the assessing authority with certain directions to ascertain as to whether the sale in question occasioned the movement of goods from one State to another. It, therefore gave following directions which are contained in para just above the operative portion of the order of the first appellate authority, they are ;
(i) The contract in between agent of the dealer opposite party and the third party to whom the goods were delivered needs examination, which was omitted by the assessing authority
(ii) It is also important to find out the name mentioned in the proforma invoice sent along with the goods to the third party.
(iii) The sale consideration was received by the dealer opposite party directly from the third party or through agent.
(iv) To whom the goods were delivered by the dealer opposite party.
(v) Whether the goods were directed to the third party as is the case of dealer opposite party to save transportation charges or there was a contract in between the third party and the dealer opposite party. The fact that the agent and the third party both are situated in the same city namely Calcutta , also be kept in mind while considering the case of the dealer opposite party that the goods were directly delivered to third party to save the transportation charges.
Strangely enough, the Tribunal without adverting to the aforesaid queries raised by the first appellate authority straight away on the basis of sale patti came to the conclusion that the transaction in question were not inter state sales but were consignment sales. Learned Standing counsel disputed genuineness and correctness of these sale patti which according to him were produced before the Tribunal for the first time. His objection is that only Photostat copies of sale patti were produced before the Tribunal. These sale patti were in the nature of additional evidence and, therefore, these sale patti could not be produced as a matter of right without complying with the provisions of Section 12-B of the U.P. Trade Tax Act. In this connection attention of the Court was invited towards the assessment order and ground No. 5 of the memo of revision. The said contention was vehemently opposed by the learned counsel for the dealer opposite party and he submitted that sale pattis were produced before the assessing authority itself. Be that as it may it is not possible for me to record a definite finding as to whether sale pattis were produced before the Tribunal for the first time or not. But the Tribunal, certainly committed illegality in holding on the basis of sale patti that transaction in question were consignment sale and not inter state sale. However it is not necessary for this Court to record definite finding at this stage in view of the fact that the matter was remanded by the first appellate authority for further investigation into the matter. Suffice it to say that the Tribunal has not decided the question of inter state sale in the light of statutory provision as contained in Section 3 and Section 6A of the Central Sales Tax Act. The burden to prove under Section 6A of the Central Sales Tax Act is upon the dealer opposite party that the transaction in question was not inter state sale. The dispatch of goods by the dealer opposite party directly to the third party itself prima- facie suggests that the sale occasioned movement of goods. In this view of the matter it is also equally important to ascertain as to whether the dealer opposite party received sale consideration directly from the third party or through its agent. In this view of the matter the findings of the Tribunal that the goods were dispatched by way of consignment sale is legally erroneous.
Apart from the above, the Tribunal has failed to take into account the facts as found in the survey dated 14-10-1988. On the basis of facts as found in the aforesaid survey, the assessing authority reached to the conclusion that the goods were sold by the dealer opposite party to the third party by way of inter state sale. The order of the Tribunal being one of reversal it was incumbent upon the Tribunal before setting aside the assessment order to consider all such aspect of the case which were taken into account by the assessing authority as well as by the first appellate authority. In the case of disagreement that the finding of the assessing authority or of the first appellate authority the Tribunal should have dealt with that aspect of the matter on which the authorities below it had placed reliance. It is always open to Tribunal to take a different view, but, not without taking into consideration those aspects of the case which were taken into consideration by the authorities below as held by this Court in the case of Commissioner of Trade Tax v. Doneria (P) Ltd. (2004) NTN Vol (25) page 773. It is firmly established that the Tribunal is the last fact-finding authority. The Tribunal has been given power to decide the appeal by confirming cancelling varying the order under appeal before it. In the case of reversal order it is incumbent upon the Tribunal to consider all aspect of the matter, which were taken into account by the authorities below. It is not open to the Tribunal while exercising appellate jurisdiction to write a order of reversal without pointing out error and defect in the order under appeal, as held by this Court in the case of Commissioner of Trade Tax v. Prag Ice and Rice Mill 2004 UPTC 808 as well as Commissioner of Trade Tax v. Balwant Singh Jagroshan Lal 2004 UPTC 812.
A bare perusal of the impugned order would show that the Tribunal was very much influenced by the fact that the department has accepted assessees claim of consignment sale in respect of about 98% of such transaction. It is, in other word has rejected the claim in respect of only few transaction. Therefore the Tribunal was of the view that in such circumstances there cannot be any malafide intention on the part of dealer opposite party to obtain manufactured and fabricated evidence in support of its claim. The said approach adopted by the Tribunal is not conclusive of judicial conduct and is in direct violation of law as laid down by the Apex Court in the case of Tata Engineering and Locomotive Limited v. Assistant Commercial Tax Officer 1970 UPTC 265 This was also a case under Section 3(a) of the Central Sales Tax Act. In para 15 of the report the Apex Court has held that each transaction in order to find out whether complete sale has taken place has to be examined by the assessing authority. The Apex Court has specifically disapproved the approach of the authorities that only few transactions may be examined as all transactions were of similar nature to which the assessee had himself submitted. Para 15 of the Apex Court judgment is reproduced below:
"15- Another serious infirmity in the order of the Assistant Commissioner was a matter which even the Advocate General quite fairly had to concede that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a covenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature and the appellant's representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly wrong procedure to follow and the Assistant Commissioner, on whom lay the duty of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter state sale exigible to tax under the provisions of the Act."
Thus in view of law laid down by Apex Court it is wholly immaterial that the department has accepted about 98% of the total claim of transfer by way of consignment sale and rejected with respect to only 2% on it.
8. So far as second point raised by the Tribunal that no valid reason was given by the Deputy Commissioner ( Appeal) Trade Tax while passing the remand order is concerned, the same is liable to be rejected. Various directions given by the Deputy Commissioner (Appeal) Trade Tax have been noted in the earlier part of this judgment. The Tribunal has not found that directions were irrelevant and will not in any way help to resolve the present controversy. There being no specific comment by the Tribunal with regard to the directions given by the first appellate authority the sweeping remark by the Tribunal that no valid reasons has been by the first appellate authority is uncalled for.
9. The upshot of the above discussion is that the order of the Tribunal is indefensible and is liable to be set aside. The Tribunal has committed illegality in allowing the appeal without taking into consideration the relevant facts and circumstances of the case and, as such the order of the Tribunal is perverse.
10. Learned Standing Counsel has placed reliance upon Rule 4(4) of the Central Sales Tax (U.), Rule 1957 in support of his submission that the dealer opposite party has failed to maintain the books of account in respect of the disputed transaction as prescribed therein. In view of the fact that the order of remand was passed by the first appellate authority, the said plea shall also be taken into account by the assessing authority while reframing the assessment order after remand.
11. In the result both the revisions are hereby allowed. The order of the Tribunal under revision is set aside and the Second appeal Nos. 201 of 1995 and 200 of 1995 filed before the Tribunal stands dismissed and the order of the first appellate authority is restored back. There will be however, no order as to costs.