TMI Blog1959 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... s and its head office in Calcutta. The Sales Tax Officer, Kanpur, by an assessment order dated the 28th July, 1955, has assessed the petitioner to sales tax in the sum of Rs. 2,426-11-6 on the turnover of sales effected outside Uttar Pradesh of goods supplied to buyers in Uttar Pradesh. The petitioner now challenges the validity of this assessment on the ground that as the sales took place outside this State they cannot, under Article 286(1) of the Constitution, be subject to tax. For the State it is contended that as the goods sold were actually delivered in Uttar Pradesh as a direct result of such sales for the purpose of consumption therein the assessment is valid. Article 286(1) as it stood in 1954 provided that: "286. (1) No law of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ascertained imported product in a deliverable state ; (b) that the petitioner despatched the goods to the destination in Uttar Pradesh to which the buyers desired them to be sent; (c) that the goods were consumed in Uttar Pradesh ; (d) that in the case of sales F. O. R. Calcutta/Madras/Bombay-group II-the petitioner debited the buyer with the railway freight charges ; and in the case of sales "ex-godown "-group I-the petitioner debited the buyer with the railway freight charges and the cost of the carriage of the goods from the godown to the railway station ; (e) that the sales were on a credit basis, payment being made by the buyer against the sales bills and railway receipts, either directly or through a bank or by V. P. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llachi Junction there could be no " actual delivery " of the goods at Ernakulam. At page 234 of the report the Court said: " But the crucial fact which has to be established before the exemption could be claimed is that there should be an ' actual delivery ' of the goods outside the State. If under the contract there is a delivery of these goods at Pollachi, there could not possibly be a delivery of the same goods again in Ernakulam.....If delivery had taken place within the State, there could not obviously be a delivery of the same goods outside the State merely because they were subsequently transported to and reached Ernakulam." With respect we find ourselves unable to agree with this opinion, which appears to us to make no distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the words " actual delivery " in the Explanation to Article 286(1) are used in contrast to constructive delivery as meaning physical delivery of the goods, and that the constructive delivery of goods by a seller to a carrier for transmission to the buyer is not actual delivery within the meaning of the Explanation. The delivery by the petitioner of the goods the subject of sales falling within group II to the railway administration outside this State was followed by the delivery of those goods by the railway to the buyer in Uttar Pradesh. The former, in our opinion, was a constructive delivery and the latter the actual delivery as a direct result of the sale within the meaning of the Explanation. The sales falling within this group must ..... X X X X Extracts X X X X X X X X Extracts X X X X
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