GAMA MOHANTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two references have been made under Section 24 of the Orissa Sales Tax Act by the learned Sates Tax Tribunal framing certain questions of law arising out of the order of the Tribunal to be answered by this Court.

(2.) THE questions framed by the learned Tribunal are extracted hereinbelow : (i) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that there was material on record to show that the goods (sabai Ropes) moved from Orissa to Madhya Pradesh and the movement was effected by the applicant so as to construe a sale in course of inter - State trade ? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the applicant despatched Sabai ropes from Haldipada Railway Station without considering the applicant's prayer for confrontation and for rebuttal ? (iii) Whether on the tacts and in the circumstances of the case, the turnover as sustained by the Tribunal bears any nexus to the alleged suppression and/or any basis for its determination as has been indicated ? (iv) Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding imposition of penalty and/or quantum thereof (for the year 1980 -81) without establishing a mens rea ? At the outset, Mr. Mohanty appearing for the petitioner contends that the questions as posed do not involve any question of law, but he submitted that the Court may re -frame the questions which are questions of law and arisa out of the order and according to him the following questions of law require to be answered by this Court : (i) On the facts and in the circumstances of the case, has the Revenue discharged the burden on it under Section 6(1) of the Central Sales -Tax Act to prove that the dealer shall be liable to pay tax on all sales effected by him under the Central Sales Tax. Act ? (ii) The Tribunal having found that there was absence of any material or evidence to coma to the conclusion regarding inter - State trade, whether was at all justified in affirming the order of assessment ?

(3.) SO far as the first question as re -framed is concerned, under Section 6(1) of the Central Sales Tax Act, a dealer incurs the liablity of paying tax on inter -State sale when such sale takes place within the meaning of Section 3 of the said Act. under Section 3 a sale would be deemed to have taken place in the course of inter -State trade or commerce, if the sale occasions the movement of goods from one State - to another or is effected by transfer of document of title to the goods during their movement from one State to another. This being the position of law, the question really that arises for consideration is whether on the facts and in the circumstances of the case, the Tribunal was justified in recording a finding that there has been an inter -State sale. Mr. Mohanty appearing for the petitioner contends that what is necessary to be proved is that there must be a sale and that the goods moved from one State to the other as a covenant or incident of the sale which has to be proved by the Revenue and not the assessee. Therefore, even if the Revenue has been able to establish that there was an agreement between the assessee and the Officer of the Madhya Pradesh Government to sell 600 quintals of Sabai roper, and that 600 quintals of Sabai ropes had been supplied to the Officer of Madaya Pradash Government for which payment was received by the assessee, but it has not been established that such sa)3 had, in fact, taken place pursuant to the agreement in question and, therefore, the ultimate conclusion that tiers has been an inter -State sale is erroneous. There is no dispute with the proposition that it is for the Revenue to establish that there has been a movement of goods occasioned by sale from one State to another and such movement is in course of inter -State sale in order to make the assesses liable under Section 6(1) of the Central Saies Tax Act. But if the second appellate order of the Tribunal is examined, it will appear that a finding has been on the statement of the assessee himself made on 3 -7 -1932 and on 13 -7 1982. On 3 -7 -1982, the assessee himself stated on oath : 'The Sales Tax Officer wanted to know if I have made transact - ions of Sabai ropes weighing 600 quintals with the Forest Department of Madhya Pradesh Government. In this connection I have to say that I have not shown this transaction, in the accounts for the year 1978 -79 to 1980 -81. It might relate to the year 1981 -82. As I have not brought the books of account for the years 1981 -82 I cannot give the detailed particulars i.e. the bill number or R/R number of each transaction..........' On 8 -7 -1982, the assessee further stated ; 'In continuation of my statement dated 3 -7 -82 in respect of Sabai Rope transactions with the Forest Department, Govern - ment of Madhya Pradesh, I am to say mat the goods supplied to Forsst Department, Government of Madhya Pradesh have been despatched by parties belonging to West Bengal against order of supply standing in my name, as I could not arrange the huge volume of stock immediately..........' The aforesaid statements of the assessee are sufficient to rocord a conclusion that there was an arrangement between the assessee and hz Forest Department of Madhya Pradesh to supply Sabai ropes weighing 600 quintals, and 600 quintals had been despatched to Madhya Pradesh, and that the said transaction had not been reflected in the accounting year 1978 -79 to 1980 -81 as it relates to the year 1981 -82. Therefore, the initial statement made by the assessee on 3 -7 -1982 does establish the fact of an agreement between the parties and that of movement of goods from one State to the other. The subsequent statement made on 18 -7 -1S82 only makes out a plea that the supply was made not by the assessea but by somebody also from West Bengal on behalf of the assessee and that plea on the materials on record was found to be falsified and not established. Therefore, the Tribunal was justified to come to the conclusion that there has been an inter -State sale which the assessee had not disclosed in his return The conclusions of the Assistant Commissioner which have been affirmed by the Tribunal to the effect that the assessee was a registered dealer in Mayurbhanj Circle, that the goods were sold on the strength of his registration certificate and that the goods moved from Orissa to Madhya Pradesh and certain payments were received by the assessee have all been affirmed by the second appellate authority namely the Sales Tax Tribunal. Therefore. the ultimate conclusion that the Sabai ropes had been sold in course of inter -State trade during the relevant year and were despatched from Orissa to Madhya Pradesh by the dealer cannot be said to be erroneous in any manner. In this view of the matter, our answer to the first question framed is in favour of the Revenue and against the assessee and we hold that the Tribunal was fully justified in coming to the conclusion that the assessee incurred the liability under Section 6(1) of the Central Sales Tax Act and the Revenue has duly discharged its burden to establish the necessary ingredients.