TMI Blog1987 (10) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) Whether the Tribunal is justified in overlooking its own findings given in Appeals Nos. 41-I/78 and 42-I/78 decided on 20th November, 1979 and again deciding the same facts and holding a contrary view than those decided in the previous year without any evidence before it? (3) Whether the decision of a part of the year, i.e., 1st September, 1976 to 23rd October, 1976, under section 19(1) of the Act could be made applicable to the whole year particularly so when the main issue of implied contract of sale of bardana is sub judice before the Tribunal? 2.. The facts in brief necessary to appreciate the import of the questions referred to us are that the assessee-applicant is a sole selling agent of M/s. Udhavji Shrikrishna Das, Satna, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Factory v. State of Andhra Pradesh [1966] 17 STC 624, it was held by the Supreme Court that whether there was an agreement to sell the packing materials was a pure question of fact and that question could not be decided on fictions or surmises. The burden lay upon the Commercial Tax Officer to prove that a turnover was liable to tax and he could ask the assessee to produce the relevant material. If the assessee did not produce the same, he could draw adverse inferences against the assessee, but he had to decide the crucial question whether the packing materials were the subject of the agreement of sale, express or implied. It was further held that in order to constitute a sale, it was necessary that there should be an agreement between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of packing material or container is on the department and the assessee is not required to prove the negative. 4.. In view of the law laid down in the aforesaid two cases, our answer to question No. (1) is that on the facts and circumstances of the case, the Tribunal was not justified in inferring sales of bardana on conjectural basis of having implied contract of sale thereof without any data whatsoever. 5.. In view of our answer to question No. (1), we find it unnecessary to answer question No. (2). We are also of the opinion that in view of our answer to question No. (1), question No. (3) remains only of academic importance and need not be answered. Accordingly, questions Nos. (2) and (3) are returned unanswered, for the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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