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2000 DIGILAW 173 (GAU)

TATA TEA LIMITED v. SUPERINTENDENT OF TAXES, NAGAON

2000-05-09

H.K.SEMA

body2000
JUDGMENT H. K. SEMA, J. - This petition is directed against the order dated December 29, 1994 passed by the learned Member, Assam Board of Revenue in Case S.T.A. Nos. 62 to 66 of 1992, dismissing the appeal filed by the petitioner. The facts leading to the filing of the case need not be recited, as the case is going to be remanded back to the learned Member of Assam Board of Revenue for a fresh disposal. However, in a nutshell, the dispute involved is with regard to the assessment Years March 31, 1988, September 30, 1988, March 31, 1989, September 30, 1989 and ending March 31, 1990. It is the case of the petitioner that within the aforesaid assessment years, the Superintendent of Taxes, Nagaon has assessed on the stock of goods transferred to its agent M/s. Rajnikant & Brothers by treating such transfer of stock of goods as sales which is illegal inasmuch as the agent was carrying on his own business by selling of goods as a registered dealer. Before the learned Board of Revenue the petitioner has raised the following contentions : (a) That sub-section (3) of section 2 of the Assam Sales Tax Act, 1947 does not contemplate any stipulation that only one dealer in respect of all sales within the State including the sale effected through an agent/dealer inasmuch as the definition of a 'dealer' under sub-section (3) of section 2 of the Act is adequately wide to import all persons carrying on business within its ambit whether the business is carrying on for commission/remuneration or otherwise. (b) The explanation under the section does not bar the principal within the State to appoint an agent for selling of its goods on his behalf inasmuch as the explanation is applicable only to a non-resident principal and therefore, the explanation is not applicable to the petitioner as he is a resident within the State. (c) The stock of goods being transferred to the agent under written agreement retaining the ownership of goods with the principal, the ownership of goods does not pass on to the agent and such transaction cannot be treated as sales by the petitioner to the agent. (c) The stock of goods being transferred to the agent under written agreement retaining the ownership of goods with the principal, the ownership of goods does not pass on to the agent and such transaction cannot be treated as sales by the petitioner to the agent. (d) The agent having already paid the due tax of the goods on behalf of the appellant, assessment of the same turnover in the hands of the petitioner will result into double taxation which is not permissible under the provisions of the Act. (e) Petitioner submitted declaration form under the Act for the periods ending March 31, 1988 and March 31, 1989 after obtaining the same from the selling agent M/s. Rajnikant & Brothers without prejudice that the stock transfer of tea made to the selling agent was not by way of sale and therefore, not liable to tax. This question was not at all adverted to by both the learned court below. These are the sums and substances of the petitioner's contentions before the learned Board of Revenue, Assam. Unfortunately, the learned Board of Revenue, while disposing of the appeal by the aforesaid order did not at all consider the points in proper perspective. No discussion on the aforesaid issues, no reason has been recorded as to why the contention has been rejected or accepted, depriving this Court to examine the merit of the decision. In fact, the appeal was disposed of in a most casual and cavalier manner. In fact, at one point of time, this Court was of the view to dispose of the matter on merit and for that reason Mr. G. K. Joshi, learned counsel for the petitioner, has been heard at considerable length. Mr. Rahman, learned Government Advocate appearing for the respondents at the outset submits that the order passed by the learned Board of Revenue is bereft of reasons and according to him, it is a fit case for remand. Although considerable time has been spent in hearing this petition, I am also of the view that since the above issues have not been at all discussed by the learned Board, depriving this Court from examining the validity of the reasoning and the conclusion reached, the matter should go back to the learned Board of Revenue for fresh disposal. Although considerable time has been spent in hearing this petition, I am also of the view that since the above issues have not been at all discussed by the learned Board, depriving this Court from examining the validity of the reasoning and the conclusion reached, the matter should go back to the learned Board of Revenue for fresh disposal. Having said so, in my considerate view, the crux of the dispute revolves around to this issue : (a) Whether the appointment of the agent/dealer under the Assam Sales Tax Act is valid and permissible and if so, whether the principal is liable to be taxed the sales tax in its turnover despite of tax already been paid by the agent/dealer for the same turnover ? In the result, the judgment dated December 29, 1994 passed by the Assam Board of Revenue in case S.T.A. Nos. 62-66 of 1992 is hereby quashed and set aside with a direction to restore the appeal petition to its file and heard the parties afresh. The Board of Revenue is further directed to address themselves on the aforesaid issues and give its findings on each issue by giving reasons. It is made clear that the petitioner is also at liberty to address the Board of Revenue on any question of law that may be required for just and proper adjudication of the dispute. Since the matter has been pending for quite long, the Assam Board of Revenue is directed to dispose of the appeal within a period of 2 (two) months from the date of receipt of this order. Registry is directed to transmit the case record forthwith along with a copy of this order. Till the appeal is disposed as directed, the interim order dated February 21, 1995 passed by this Court shall continue. With the aforesaid direction this petition is disposed of. No costs. Petition disposed of accordingly.