TMI Blog2005 (10) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matter to the assessing authority with certain directions. Still feeling aggrieved against the aforesaid remand order the dealer-opposite party preferred the aforesaid two second appeals before the Trade Tax Tribunal who by the impugned order allowed both the appeals and set aside the assessment order as well as the order of the first appellate authority by recording a finding that on the basis of sale pattis produced before it the transactions in question were not inter-State sales but were consignment sales. Aggrieved against the aforesaid order the present revision have been filed by the department. The only point raised in these revisions is that the Tribunal has committed illegality in allowing the second appeals filed by the dealeropposite party in toto without addressing itself about the legality of the directions given by the first appellate authority while passing the remand order. Heard learned counsel for the parties and perused the record. Learned Standing Counsel submitted that the Tribunal was not justified in accepting the documents which were placed before it for the first time during the course of argument. Indisputably, the goods were moved from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of books of account rejected the contention of the dealer-opposite party and held that the transactions in question were inter-State sales. The assessing authority in support of its order has given various reasons. It has recorded a finding which appears to be almost undisputed that the goods were sent by the dealer-opposite party directly to the third party. The movement of goods from the State of U.P. to the State of West Bengal is not in dispute. Section 3 of the Central Sales Tax Act, 1956 defines inter-State sale or purchase. Before a sale can be said to take place in the course of inter-State trade or commerce following conditions must be fulfilled: (1) That there was agreement to sell which contains stipulation expressed or implied regarding movement of goods from one State to another; (2) That in pursuance of the said contract the goods, infact, were moved from one State to another; and (3) That ultimately concluded sale take place in the State where the goods are sent which must be different from the State from where goods were moved. In order to determine whether the sale has taken place in the course of inter-State trade or commerce, as held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in mind while considering the case of the dealer-opposite party that the goods were directly delivered to third party to save the transportation charges. Strangely, enough, the Tribunal without adverting to the aforesaid queries raised by the first appellate authority straightaway on the basis of sale patti came to the conclusion that the transactions in question were not inter-State sales but were consignment sales. Learned Standing Counsel disputed genuineness and correctness of these sale pattis which according to him were produced before the Tribunal for the first time. His objection is that only photostat copies of sale patti were produced before the Tribunal. These sale pattis were in the nature of additional evidence and, therefore, these sale pattis could not be produced as a matter of right without complying with the provisions of section 12-B of the U.P. Trade Tax Act, 1948. In this connection attention of the court was invited towards the assessment order and ground No. 5 of the memo of revision. The said contention was vehemently opposed by the learned counsel for the dealer-opposite party and he submitted that sale pattis were produced before the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below as held by this court in the case of Commissioner of Sales Tax v. Doneria Pvt. Ltd. [2008] 11 VST 459; [2004] 25 NTN 773. It is firmly established that the Tribunal is the last fact-finding authority. The Tribunal has been given power to decide the appeal by confirming, cancelling, varying the order under appeal before it. In the case of reversal order it is incumbent upon the Tribunal to consider all aspects of the matter, which were taken into account by the authorities below. It is not open to the Tribunal while exercising appellate jurisdiction to write an order of reversal without pointing out error and defect in the order under appeal, as held by this court in the case of Commissioner of Sales Tax v. Prag Ice and Oil Mills [2004] UPTC 808 as well as Commissioner of Sales Tax v. Balwant Singh Jagroshan Lal [2004] UPTC 812. A bare perusal of the impugned order would show that the Tribunal was very much influenced by the fact that the department has accepted assessee's claim of consignment sale in respect of about 98 per cent of such transactions. It is, in other words has rejected the claim in respect of only few transaction. Therefore the Tribunal was of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejected. Various directions given by the Deputy Commissioner (Appeals), Trade Tax, have been noted in the earlier part of this judgment. The Tribunal has not found that directions were irrelevant and will not in any way help to resolve the present controversy. There being no specific comment by the Tribunal with regard to the directions given by the first appellate authority the sweeping remark by the Tribunal that no valid reason has been given by the first appellate authority is uncalled for. The upshot of the above discussion is that the order of the Tribunal is indefensible and is liable to be set aside. The Tribunal has committed illegality in allowing the appeal without taking into consideration the relevant facts and circumstances of the case and, as such the order of the Tribunal is perverse. Learned Standing Counsel has placed reliance upon rule 4(4) of the Central Sales Tax (Uttar Pradesh) Rules, 1957 in support of his submission that the dealer-opposite party has failed to maintain the books of account in respect of the disputed transaction as prescribed therein. In view of the fact that the order of remand was passed by the first appellate authority, the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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