TMI Blog2020 (1) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... arajan COMMON ORDER DR. VINEET KOTHARI, J. These Writ Petitions have been filed by the Revenue aggrieved by the common order dated 27.07.2001 passed by the Tribunal in C.T.A.Nos.106 and 107 of 2000, whereby the learned Tribunal after a detailed fact finding exercise with regard to branch transfers made by the Assessee held that Assessee did not make inter-state sales under the provisions of the Central Sales Tax Act. The operative portion of the order passed by the Tribunal are quoted below for ready reference: 23. With regard to the second part agitated in this appeal, which are not covered by any 'D7' records but disallowed exemption by the Assessing Authority our independent verification of the entire set of documents available with the assesses would show the following and we give the findings as under: [a] The assessee had established a branch and was maintaining them at their own expenses and the expenses are met by the principal office to whom the accounts are rendered and they are covered by the balance sheet produced and verified at the time of hearing [b] The products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STC 42 in the case of Bhopal Sugar Industries Limited versus Sales Tax Officer, itself that in an agency relationship, the ingredients required are that he has possession land central, demain over the goods entrusted to by the principal, that the transfer of goods between the principal and his agent do not amount to sale, as there was no transfer of property between them, though there may be transfer of possession and custody; that the transaction will become one of the agency till the goods are sold and thereafter the relationship between the two will be one of creditor and debtor. Following the ratio of the decision, we should observe that there was no transfer of property in goods between the appellant and the ultimate buyer in other State. 25.In the decision of the Supreme Court in the case of peninsular Traders versus Deputy Commissioner, Sales Tax [Law] Kerala reported in 108 STC 575,it was held that the agreement alone should be taken as the criteria in deciding the terms of an unusual obligation undertaken by any person concerned. The verification of the records would show that the price fixed in the stock transfer invoice to the depot was the exact price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been effected in lump sum but the sale has been effected in piecemeal manner in the State of Kerala, as could be seen from the statement filed in respect of sales effected in other States throughout the year. The month-war opening stock register, goods receipt, sales effected and the closing stock at the end of the month are given in the form of a Statement. Such statement do not indicate anything contrary to the established principles of law as decided by the High Court and Supreme Court stated above. 30. On the basis of the decision of the Allahabad High Court in the case of Bareily Resin Turpentine Manufacturing Company Versus Commissioner of Sales Tax U.P.Lucknow, we have caused verification of the entire transactions Bench] in T.A.Nos.831/98 and C.O.P.No:349/98 dated 18.04.2000 in the case of Kwality Ice-Creams [Madras] private Limiteld, Chennai versus State of Tamilnadu in which it was held that the details were verified by the Assessing Authority if the State of the State of Kerala and the branch was located in that state. The purpose of verification of the details reflected in Form-F has been achieved in such circumstances, the exemption was allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner of Sales Tax, Indore and others reported in 45 STC 197 where in it was held that where the assessee does not include a particular item in the taxable turnover under a bonafide belief that he is not liable so to included it, it would not be right to condemn the return as a false return inviting imposition of penalty. 36. Further reliance was placed on the Madras High Court decision in the case of Kathiresan Yarn Stores versus The State of Tamilnadu reported in 42 STC 121, it was held that in order to impose penalty, it must be possible first to come to the conclusion that there was actually a turnover and further that turnover was not disclosed. The mere fact that there is a best judgment assessment, particularly when the assessment is based assessee to establish the case pleaded by him, will not be sufficient for the purpose of imposition of penalty for the degree of proof required for the imposition of penalty is quite difference from and is of a much higher order that that required for the purpose of marking a best judgment assessment. However, in this case, we have deleted substantial portion of the turnover made liable to tax by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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