JAGANNADHA BALDWA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS tax revision case filed by the assessee in connection with the assessment year 1980-81 raises two questions : (1) Whether the impugned sales are exempt under section 6 (2) of the Central Sales Tax Act ("the Act"); and (2) if not, whether Andhra Pradesh or Gujarat is the appropriate State for payment of the Central sales tax.

(2.) THE assessee purchased 100 bales of cotton from a Gujarat party for consideration of Rs. 2,17,747. It is his claim that while the goods were in transit, he sold them to a party in Sholapur for consideration of Rs. 2,32,768 by transfer of documents of title. During the course of the Central sales tax assessment, the assessee claimed exemption of the sales effected under section 6 (2) of the Act on the ground that they were transit sales. The claim for exemption was rejected on the ground that C forms and E-I forms produced by the assessee were defective. It may be pointed out that unless valid C forms and E-I forms are filed, claim for exemption under section 6 (2) of the Act cannot be entertained. The assessee filed appeal before the Deputy Commissioner, but without success. On further appeal, the Tribunal examined the matter critically and expressed a doubt whether the claim that the assessee sold goods to the Sholapur party while the goods were in transit was genuine. The Tribunal examined the record produced and pointed out significant errors which cast a doubt on the genuineness of the assessee's claim that the goods were sold while they were in transit. The finding of the Tribunal in this regard is essentially a finding of fact, and we cannot interfere with the same. That apart, the Tribunal had also pointed out that the C forms and E-I forms contained interpolations and in the absence of valid C forms and E-I forms, the claim for exemption was not rightly entertained.

(3.) LEARNED counsel, Sri Dasaratharama Reddi, contends that even assuming that Central sales tax is payable, the appropriate State is the State of Gujarat and not the State of Andhra Pradesh. Learned counsel pointed out that the fact that the assessee collected 4 per cent Central sales tax from the Sholapur party should not cloud the consideration in this regard. Learned counsel endeavoured to draw attention to section 9 of the Act in support of the claim that the appropriate State is the State of Gujarat and not the State of Andhra Pradesh. We are unwilling to examine this question for one basic reason. The contention was raised before the Tribunal in the grounds, but was not dealt with by the Tribunal, apparently for the reason that the counsel who argued the appeal before the Tribunal did not deal with the same. A ground although raised before an appellate authority, if it is not argued before the appellate authority it must be taken to have been given up. We also find that there is no complaint in the memorandum of revision that notwithstanding the ground being raised before the Tribunal, there is a failure on the part of the Tribunal to consider the ground. This would only fortify the view that possibly the ground was not argued before the Tribunal at all. We cannot, therefore, permit the learned counsel to argue this ground at this stage. We reject the contention accordingly.