HIRASON ENTERPRISES Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) The facts giving rise to these two revisions under Section 11 of the U.P. Sales Tax Act (hereinafter referred to as "the Act"), at the instance of the assessee briefly stated are that the assessee is a sole proprietorship concern of Sri B.P. Garg, who was carrying on business of matches and was also a guarantor for payment of Coal (India) Limited, Calcutta. The assessee is registered under the Central Sales Tax Act. In the assessment years 1975-76 and 1976-77, it has been alleged by the assessee that it was acting as a guarantor for payment of Coal (India) Limited, Calcutta, or its subsidiary companies from where the coal is sent to the District Magistrate, Aligarh. The assessee got certain amount of commission for the services rendered by it. According to the assessee it was only a nominated coal agent of the District Magistrate, Aligarh, for ensuring the payment to Coal (India) Limited, Calcutta, and also for collecting the payment from various consumers on behalf of the District Magistrate, Aligarh. The District Magistrate, Aligarh, after finding out the requirements of the brick-kiln owners and the coal depots used to send the details of the requirements of coal to Coal (India) Limited, Calcutta, through the Director of Movement, U.P., Lucknow. Thereafter, the railway receipts are prepared by the Coal (India) Limited, Calcutta, in the name of the District Magistrate, Aligarh, as consignee. It is further alleged that after the railway receipts are placed in the hands of the District Magistrate, he used to prepare lists of the various consumers and industrialists to whom the coal wagons are to be delivered for consumption. The District Magistrate also used to endorse the various railway receipts in favour of the various consumers and industrialists to whom the coal is to be delivered. Thereafter the consumers used to take delivery of the goods from the railway on payment of the freight and other delivery charges. It is further alleged that the assessee had no control on the goods during the entire period of movement nor after the goods reached Aligarh. The stand of the assessee had all along been that it was acting as a guarantor for ensuring payment to the Coal (India) Limited, Calcutta, and realising payment on behalf of the District Magistrate, Aligarh. The assessee always asserted that since it was not the consignee and was only entitled to commission hence it was exempted from payment of any Central sales tax and as such it did not file any return under the Central Sales Tax Act for the years in question on the assumption that it was not liable to pay any Central sales tax.

(2.) The Sales Tax Officer, however, issued notice to the assessee as to why Central sales tax be not imposed on it. The assessee contested the aforesaid notice issued by the Sales Tax Officer on the ground that no sale has been effected by it and the railway receipts have always been endorsed by the District Magistrate. The Sales Tax Officer by order dated 13th July, 1978, accepted the account books of the assessee but rejected the claim of the assessee that the sales were not effected by it and treated all the sales to be of the assessee. The assessee feeling aggrieved against the order of the Sales Tax Officer filed appeals under Section 9 of the Act before the Assistant Commissioner (Judicial), which were dismissed by order dated 15th February, 1979. Against the order passed by the Assistant Commissioner (Judicial), the assessee preferred revisions before the Additional Judge (Revisions), Sales Tax, Aligarh. It is pertinent to mention here that the revision in respect of the year 1975-76 was transferred to the Judge (Revisions), Sales Tax, U.P., Lucknow, which was dismissed on 3rd November, 1979, whereas the revision in respect of assessment year 1976-77 remained pending before the Additional Judge (Revisions), Sales Tax, Aligarh.

(3.) Against the order passed by the Judge (Revisions), Sales Tax, U.P., Lucknow, dated 3rd November, 1979, the assessee preferred Sales Tax Revisions Nos. 1151 and 1152 of 1979 in this Court which were allowed and the order passed by the Judge (Revisions), Sales Tax, are set aside and the cases sent back to the Tribunal concerned for decision afresh according to law. The aforesaid two revisions in this Court related to assessment years 1974-75 and 1975-76, The decision given in those two revisions are reported in Hirason Enterprises v. Commissioner of Sales Tax, U.P. 1981 UPTC 121. This Court after considering the various arguments raised on behalf of the assessee in the aforesaid case that the assessee was not a dealer and that it was only an agent came to the conclusion that for advancing the arguments no factual foundation was laid by the assessee before the Sales Tax Officer as well as before the first appellate court. This Court also observed that the onus was on the Revenue to show that the assessee was a dealer. It appears that certain fresh evidences were filed before this Court which were not filed before the authorities below and as such this Court was of the opinion that the evidence which was filed before this Court for the first time should be filed before the authorities below and as such this Court remanded the case to the Tribunal for fresh consideration in the light of the observations made in that judgment and also directed the parties to lead evidence in support of their respective pleas.