MONI PROSAD SINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal under clause 15 of the Letters Patent is directed against the judgment and order dated May 13, 1973, whereby P. K. Banerjee J, discharged Civil Rule No. 4279 (W) of 1968.

(2.) THE appellants at all material "times, as co-partners of Howrah Wire industries (hereinafter referred to as the said Wire Industries) carried on business amongst others in the manufacture of wire, wire nettings and different kinds of machineries for the purpose of manufacture of machineries for making barbed wire, wire nail, staple, panel pin and wire drawing, at 59, Canning Street and held Certificate of registration No. AT/3347a under the Bengal Finance (Sales Tax) Act. 1941 (hereinafter referred to as the said Act ). They were also co-partners in another business under the name and style of Howrah Steel and wire Products (hereinafter referred to as the said Wire Products) at the said address of 59, Canning Street under registration Certificate No. AT/3755 A issued under the said Act and employed amongst others in the manufacture of mild steel wire and Galvanized wire. '

(3.) IN or about 1960 the appellants transferred machineries on diverse dates worth about Rs. 79,318. 11 p from the said Wire Industries to the said wire Products, and the Commercial tax Officer concerned treated the said transfer as sales and by his order in annexure "c" dated March 29, 1. 963, assessed them to tax. It is an admitted fact that the appellants filed a return showing the gross turnover at rs. 6,21,821. 32 p. Thereafter, at the assessment stage, they filed a revised return for the month of December 1960 reducing the gross turnover from Rs. 1,87,074. 35 p to Rs. 1,08,336. 34 p. claiming that machinery worth Rs. 72,478. 61 p and Rs, 6,830. 50 p which were transferred to the said Wire Products, is an allied concern of the partners of the said Wire Industries. The relevant bill No. 73/60 and 74/60 were wrongly shown as sales in the original return and contending further that those were mere transfers and not sales. It was also contended that those transfers were shown as sales by mistake. It is also an admitted fact that taking those transfers as sales, the appellants preferred claims for deduction of the amounts as mentioned hereinbefore, under section 5 (2) (a) (ii) of the said act. It is also apparent from the records of this proceedings that Bill No. 73/60 as aforesaid was for Rs. 38,900/-and the appellants have shown Rs. 32,060. 50 p out of the same on account of sales of machineries and the balance of Rs. 6,839. 50 p on account of transfer to the said Wire Products. It was contended on behalf of the appellants that the transfer of machineries being from the same partners of one partnership business to another partnership business, could not constitute "sale" within the meaning of the said Act.