9911796707
TMI Blog1968 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ched by rail direct to the customer's place of business; that the relative railway receipts are taken in the name of the petitioner as consignor and "self" as consignee. The railway receipts are sent to the respective offices of the petitioner in the territories from where the orders emanate. Such offices of the petitioner prepare bills, collect payments and endorse the railway receipts and deliver them to the customers when the goods are in the course of movement; that during the assessment period 1957-58 (i.e., 1st July, 1957, to 31st March, 1958), the petitioner through its Delhi office entered into agreements with customers for sale to them of its products manufactured at its factory at Izatnagar in the State of Uttar Pradesh; that the agreements in all those cases provided for delivery f.o.r. Izatnagar and also contained instructions for despatch of the goods to customer's place of business at Delhi; that instructions were then issued by the petitioner's head office in Calcutta to its factory at Izatnagar to despatch the goods to the customer's place of business at Delhi; that when the goods were made ready, the factory at Izatnagar "unconditionally appropriated" the same to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " to the contracts in Delhi. Although the petitioners have paid the entire sales tax demand with respect to the transactions in question in Uttar Pradesh, still by order dated 28th March, 1962, the Sales Tax Officer, New Delhi, assessed the petitioner to sales tax under the Central Sales Tax Act with respect to the same transactions and raised a demand for Rs. 14,870.08 P. Before the Sales Tax Officer, New Delhi, the petitioner raised the same very contentions as have been raised in this petition, and mentioned hereinbefore. One of the contentions raised by the petitioner may be reproduced from the order of the Sales Tax Officer. That was"The assessees have contended that the Central sales tax is to be deposited in the State where the sales took place and section 4 of the Central Sales Tax Act determines the place of sale; that according to the aforesaid section their sales should be deemed to have taken place inside U.P. and outside other States because the goods were within U.P. at the time of appropriation under the contract of sales effected with their purchasers who give their assent to their appropriation by virtue of their accepting the goods; that section 3(b) contemplates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner filed the present writ petition, praying for the quashing of the same without taking recourse to the alternative remedy by way of appeal, etc., provided in the Act and one of the objections taken on behalf of the respondents is that failure to take recourse to such remedies is fatal to the petition. It is necessary to read the relevant provisions of the Act then in force"Section 2. In this Act unless the context otherwise requires,- (a) 'appropriate State' means- (i) in relation to a dealer who has one or more places of business situate in the same State, that State; (ii) in relation to a dealer who has one or more places of business situate in different States, every such State with respect to the place or places of business situate within its territory; Explanation-'Place of business' means- (i) in the case of a sale of goods in the course of inter-State trade or commerce falling within clause (a) of section 3, the place from which the goods have been moved by reason of such sale; (ii) in the case of any such sale falling within clause (b) of section 3, the place where the sale is effected." "Section 3. A sale or purchase of goods shall be deemed to take plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly. (3) The proceeds (reduced by the cost of collection) in any financial year of any tax levied and collected under this Act in any State on behalf of the Government of India shall, except In so far as those proceeds represent proceeds attributable to Union territories, be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India." Mr. Ashok Sen, the learned counsel for the petitioner contended that under section 9, the tax was payable only once, though it had to be collected by the Government of India "in the appropriate State" and having paid the tax in Uttar Pradesh, Delhi could not, on proper interpretation of the Act, levy and/or collect it over again. These very provisions came up for consideration before their Lordships of the Supreme Court in Tata Iron and Steel Co., Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other sale will be regarded as an inter-State sale under section 3(b)." The view of the Supreme Court, therefore, was that within clause (b) of section 3 are included sales in which the property in goods passes during the movement of the goods from one State to another by transfer of documents of title thereto. It was further held that"We are unable to hold that any weight can be attached to the argument that if it was the object of the Legislature by enacting sub-section (2) of section 4 to explain the expression, 'where the sale is effected' as used in clause (ii) of the Explanation to section 2(a), the Legislature would have expressly stated so. Nor are we able to agree with the contention that section 4 only seeks to define 'outside sales' and is not intended to locate the place where a sale is effected. The argument that by the application of section 4, sub-section (2), in cases where the goods sold are unascertained or future goods, there will be difficulty in ascertaining the place where the sale is effected, has also no For the purpose of this decision I will assume that the finding of the Sales Tax Officer, New Delhi, "that the transactions were inter-State sales, as conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nked with passing of property. The term "unconditional appropriation" existed in the Sale of Goods Act, years before the enactment of the Central Sales Tax Act, and if the Parliament intended to convey the same idea, the Parliament would not have omitted the word "unconditionally" in section 4(2)(b). In the petition as well as in the counter affidavit emphasis has been mainly laid on "unconditional appropriation" of the goods to the contract in Uttar Pradesh, but from the contentions of the assessee raised before the Sales Tax Officer, New Delhi, which have been quoted above, it does appear that the petitioner had argued that the goods were appropriated to the contract in Uttar Pradesh. The findings given by the Sales Tax Officer, New Delhi, are quite consistent with "appropriation of goods" in Uttar Pradesh. He has given no clear finding that the goods were appropriated to the contract as distinguished from "unconditionally appropriated" in Delhi. Without that finding the Sales Tax Officer could not assume jurisdiction to levy or collect the sales tax. Mr. Kripal, the learned counsel for the respondents, contended that these intricate questions of fact should not be determined in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
