TMI Blog1983 (4) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... orted under section 154 of the Income-tax Act, 1961 ('the Act'). On the assessee's second appeal, the Tribunal confirmed the order restoring the matter subject to its direction that certain observations made by the AAC claimed to be adverse to the assessee need not inhibit the ITO from coming to his own conclusion on facts. The ITO accepted the assessee's claim to the extent of Rs. 8,501 and repeated his earlier stand as regards balance of Rs. 45,677. The Commissioner (Appeals) found that railway receipts were transferred in this case. Transfer of railway receipt, in his view, did not amount to actual delivery. In absence of actual delivery, he concluded that the transactions were of speculative nature within the meaning of section 43(5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight paid to Dalmianagar siding in wagon ER TV No. 98642 on 2-11-1969. The seller also made out an invoice regarding the goods covered by the railway receipt on 4-11-1969 at Rs. 436 per quintal including CST subject to production of C Form. The assessee honoured the invoice, issued C Form (No. A/7-470243) and obtained E-I Form (No. 61654) so as to complete the sale. After obtaining the railway receipt, it also duly endorsed the same to Prakash Brothers in pursuance of its own sale hereinafter detailed and invoice dated 4-11-1969. The sale to Prakash Brothers was in pursuance of a similar written contract on 27-10-1969 through the same brokers. Due to a fall in price meanwhile, the agreed price on 27-10-1969 was Rs. 335 per quintal. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mill contemplated actual delivery as is evident from the inspection clause and C Form (under the Central Sales Tax Act) condition. Railway receipt was delivered to the assessee along with an invoice which was settled by payment by hundi. The moment that goods were consigned by rail, a railway receipt obtained and an invoice made out with reference to that railway receipt, there is a performance of the contract between the assessee and the oil mill. The goods have been ascertained and appropriated to the contract. The invoice, railway receipt, issue of C Form by the assessee and its obtaining E-I from the seller, all indicates that ownership in the goods covered by the railway receipt had passed to the assessee. Though there has yet been no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there could be only one delivery, i.e., the delivery to the ultimate buyer and that all prior transactions on the same railway receipt are 'speculative' transactions. In the facts and circumstances of the assessee's case, it is, therefore, not possible to say that there has been neither 'actual delivery' nor 'transfer' so as to make the transactions 'speculative' within the meaning of the statute especially since there has certainly been transfer of rights over specific goods at every stage. 6. We have, however, to deal with the 'legal' objection of the learned Commissioner (Appeals). He has likened the railway receipt with pucca delivery orders since the latter is also recognised as a document of title subject to certain conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the buyer. It is true that railway receipt is primarily a document recognising the endorsee's right to take delivery. Ownership may depend upon other terms of the contract. But in the context of test for ascertaining whether there has been delivery or not, it is this right to take delivery that is of prime importance. Even otherwise, in the facts of the case before us, the contract is for despatch of the goods-bilticut Raichur (sic). Once the bilticut (railway receipt) is delivered, the seller's part of the contract stands performed and there is no material for holding that even ownership has not passed to the assessee-buyer. The position is the same as between the assessee and his buyer after endorsement/delivery of railway receipt. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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