M.M.SUNDRESH, J The Revenue who is the petitioner herein has filed the present writ petition, challenging the order passed by the Appellate Tribunal in allowing the appeal filed by the assessee who is the first respondent herein and dismissing the Cross Appeal filed by the Revenue by holding that the transaction involved in the relevant period is only a consignment sale and not an inter state sale.
2.The point in controversy is the disallowance of turnover in a sum of Rs.12,22,374/- 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 C.S.T. Act, 1956 is correct or not.
3.The brief facts leading to the case in a nutshell are hereunder:
The respondent is a dealer in Iron and Steel and an assessee on the file of the Commercial Tax Officer, Thudiyalur Assessement Circle, Coimbatore. In respect of the Assessment Year 1991-92, the respondent was assessed on a total and taxable turnover of Rs.19,27,303/- as against the reported total and taxable turnover of Rs.19,27,303/- and Rs.7,04,929/- respectively in the CST Assessment Order dated 30.09.1993 in which the claim of the assessee in respect of turnover of Rs.12,22,374/- as consignment sale through their agent at Kerala State has been rejected on the ground that the goods were sold by the agent in the other State on the very same day or the next day and without there being any pre-existing order such a sale could not be effected on the same day or the next day. The Assessing Officer also levied penalty under Section 12(3) of the T.N.G.S.T. Act read with
Section 9(2) of the C.S.T. Act at 150 percent of the tax due on the turnover of the consignment sale.
As against the said order, an appeal was preferred by the assessee before the First Appellate Authority Appellate Assistant Commissioner, Coimbatore, who granted the relief in favour of the assessee in respect of a turnover of Rs.4,31,627/-, as he found that the goods of the above turnover were sent Kerala, where it was unloaded in the agents godown and reloaded and despatched to various places on various dates subsequent to the receipt of goods. In respect of the rest of the turnover in a sum of Rs.7,90,747/- the order of the assessing authority was confirmed. The entire penalty imposed by the Assessing Officer has been deleted on the ground that the turnover was offered but tax exemption was claimed as consignment sale.
The assessee filed a further appeal before the Sales Tax Appellate Tribunal (Additional Bench), Coimbatore. The Department also filed an Enhancement Petition for restoration of the order of the Assessing Officer which has been taken on file as T.C.M.P. No.95 of 1994.
4.The Assessing Officer came to the conclusion on the basis that the entire goods sent as consignment were sold within a day or two in other States which cannot be done unless or otherwise there is a pre-existing purchase order for the goods. Thus, the entire transaction was treated as an inter-state sales falling under
Section 3(a) of the C.S.T. Act. The First Appellate Authority has deleted four transactions for which the assessee was able to file the proof of having unloaded the goods in the place of business of the agent at Palakkad in Kerala.
5.It is seen from the order of the Tribunal that the assessee has filed all the necessary documents prescribed under Rule 4 (3) of the C.S.T (Tamil Nadu) Rules, 1957 like Form-F declaration, pattials and stock statement rendered by the agent as well as the other details required by the Assessing Officer and proving the claim of consignment sale. However, those documents were brushed aside by the Assessing Officer on the ground that the goods were despatched to the ultimate buyer within a day or two of the arrival and accordingly, the claim of consignment sale has been rejected. There is no answer whatsoever with regard to the documents produced as referred to above including the agreement of the agent. The agent has filed pattials and stock statement before the Assessing Officer. The statute requires certain documents to establish that the particular transaction is only a consignment sale. The assessee has duly furnished those documents. Neither the Assessing Officer nor the Appellate Authority have rejected those documents with valid reasons. However, the Tribunal taking note of those prescribed statutory documents has granted the relief.
6.Further, the Appellate Tribunal has also taken into consideration of the fact that the goods were consigned from Coimbatore to Palakad which would normally take only 1= hours has allowed the appeal filed by the assessee. The Appellate Tribunal held that the mere fact that the goods have been sold on the very same day itself cannot be a ground to reject the claim for exemption more so in the absence of any incriminating document to prove the contrary coupled with the evidence produced by the assessee. The Appellate Tribunal was also pleased to hold that the assessee has produced the documents required under Rules 4 (3-A) of the CST (Tamil Nadu) Rules, 1957 such as the declaration under Form-F, pattials, stock statement rendered by the agent along with other details required by the Assessing Officer. Yet another document that was considered by the Appellate Tribunal was the copy of the sale bills issued in the other States and the agreement entered into between the agents of the assessee with the purchaser. The accounts of the agents were also verified and they indicate that the loading and unloading charges incurred by the agents. Therefore, on a consideration of the above said facts, the Appellate Tribunal has allowed the appeal filed by the assessee in toto. Moreover, it is not the case of the Revenue that there are other incriminating documents enabling the authorities from coming to the conclusion that the transactions were inter-state sales. On the contrary, the assessee has produced relevant documents to substantiate his case.
7.Section 6 (A) of the CST Act, 1956 mandates the assessee to substantiate his case that a particular transaction is a consignment sale and not an inter-state sale. Rule 4 (3-A) of the CST (Tamil Nadu) Rules, provides for the particulars to be furnished by the assessee when called for by the Assessing Officer. In the present case on hand, the assessee has proved that the declaration made in Form-F under
Section 6(A) is true and in support of his declaration, he has also produced various materials. It is not the case of the Revenue that the 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.
8.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 also confirmed by the subsequent judgment of the Division Bench reported in VOL.96 1995 STC 98 [A.DHANDAPANI v. STATE OF TAMIL NADU AND ANOTHER] wherein also the Division Bench was pleased to hold that it is for the dealer to prove that the particulars mentioned in Form-F are true. Therefore, a reading of the above judgments would indicate that in the present case on hand, the assessee has proved with documentary evidence before the authorities that the particulars furnished by him are true and genuine and there is no contra material to disprove the stand taken by the assessee.
9.In the Judgment reported in VOL.72 1989 STC 294 [DELHI IRON AND STEEL CO. LTD. v. COMMISSIONER OF SALES TAX, U.P.], the High Court of Allahabad has held as follows:
"Factually, in the present case the authorities below, on the basis of material on record, have found that out of the turnover of Rs.40 lacs the turnover to the extent of 50 per cent is exempt as branch transfer and the remaining 50 per cent, i.e., the turnover of Rs.20 lacs, is liable to tax under the Central Sales Tax Act. From a perusal of the order passed by the Sales Tax Tribunal it is clear that it has only upheld the liability of the assessee under the Central Sales Tax Act to the extent of Rs.20 lacs on the sole ground that the sales in question were made the same day at Delhi. For the purposes of levying Central Sales Tax the same can hardly be a ground available to the department."
10.A similar view has also been taken by 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.
11.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 the entire records available and the documents have been verified by the department representative as well. Hence orders have been passed by the Appellate Authorities on a consideration of the materials available on record. Therefore, when orders have been passed by the Appellate Tribunal confirming the order of the First Appellate Authority based upon the materials available on record, this Court exercising the power under
Article 226 of the Constitution of India cannot go into the merits of the said decision unless the said findings are totally perverse or not supported by materials. In this connection, it is useful to refer the judgment rendered in VOL.125 2002 STC 304 [MONGA RICE MILL v. STATE OF HARYANA AND ANOTHER] wherein the Division Bench of the Punjab and Haryana High Court has observed as follows:
"38... However, in matters involving facts and an investigation into transactions, the writ court has an apparent handicap. Normally, it cannot record evidence and give findings on questions of fact. These have to be invariably determined by the authorities under the statute. It is only when an order passed by a quasi-judicial authority suffers from an error apparent on the record or is in violation of a statutory provision that the court intervenes by the issue of a writ of certiorari."
12.The Hon'ble Apex Court in (2004) 3 SCC 682 [RANJEET SINGH v. RAVI PRAKASH] has observed as follows:
"Feeling aggrieved by the judgment of the appellate court, the respondent preferred 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 be amenable to correction in certiorari jurisdiction, the error committed by the court or authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under
Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. The High Court has itself recorded in its judgment that "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the appellate court. On its own showing, the High Court has acted like an appellate court which was not permissible for it to do under
Article 226 or
Article 227 of the Constitution."
13.Therefore on a consideration of the above said position of law, we are of the opinion that the issues raised by the Revenue in the present writ petition being questions of fact which were thoroughly considered by the lower authorities they do not warrant any interference.
14.Accordingly, the writ petition is dismissed. No costs.