TMI Blog1959 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... tter in appeal to the Deputy Commissioner of Sales Tax, but the appeal was dismissed with some modification. The assessee applied in revision before the Board of Revenue, but the revision application was dismissed with a direction that the claim of the assessee for deduction on account of sales to registered dealers for the period in question should be further investigated. As required by the assessee the Board of Revenue has referred the following questions of law for the opinion of the High Court under section 25(1) of the Bihar Sales Tax Act: "(1) Whether the sales by the petitioner of goods which were actually delivered in Bihar as a direct result of such sales for the purpose of consumption in Bihar during the period 26th January, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Andhra Pradesh High Court in Government of Andhra v. Nooney Govindarajulu [1957] 8 S.T.C. 297; A.I.R. 1958 A.P. 109. in support of his argument that section 33 of the Bihar Sales Tax Act, introduced by the Adaptation of Laws (Third Amendment) Order, 1951, did not create a liability to tax, and the language of the section showed that it was intended as a restriction on the taxing power conferred under the Act and did not enlarge the scope of that power. There is no merit in this argument as the decision of the Andhra Pradesh High Court has been expressly overruled by the Supreme Court in M.P.V. Sundararamier Co. v. State of Andhra Pradesh and Another[1958] 9 S.T.C. 298; A.I.R. 1958 S.C. 468 at p. 484.The Supreme Court expressly overrul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary, 1950, to 30th of September, 1951, have been validly taxed and the question must accordingly be answered against the assessee and in favour of the State of Bihar. With regard to the second question, counsel on behalf of the assessee referred to the decision of the Supreme Court in State of Travancore-Cochin and Others v. Shanmugha Vilas Cashew-nut Factory(1), but there is no material in the present case to suggest that the assessee was merely acting as an agent for any foreign seller and there was privity of contract between the Damodar Valley Corporation and the foreign seller. It is true that if the assessee had been able to prove that he was only an agent for the foreign seller and there was privity of contract between the Damodar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be brought into actual possession of the purchaser but this process, your petitioner submits, will not constitute delivery. Transference of the goods from the place where constructive delivery takes place (as in the case of a F.O.R. contract) will not be a process in the act of delivery. The ultimate destination may determine the place where the buyer gets actual physical possession of the goods but this your petitioner submits will not be actual delivery of the goods at all, the seller as seller having nothing to do with this subsequent despatch. The Superintendent erred in holding that under the contract with the purchase officer of the Damodar Valley Corporation your petitioner undertook to give actual delivery of the goods in Bihar. Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, undertook to give constructive delivery at Calcutta and by an agreement with the Executive Engineer the goods were consigned to him but it was not agreed that your petitioner would actually deliver the goods at Kodarma in Bihar. A considerable proportion of the goods delivered to customers in Bihar was imported into Bihar from outside the territory of India against their specific orders and such sales are exempt from sales tax. The learned Superintendent erred in imposing sales tax on such sales." Even in the grounds of appeal the assessee did not claim that they were acting as an agent for the foreign seller with regard to the transaction of supply of goods to the Damodar Valley Corporation and of course there is no finding on this p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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