1987 (10) TMI 365

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....s of bardana on conjectural basis of having implied contract of sale thereof without any data whatsoever? (2) Whether the Tribunal is justified in overlooking its own findings given in Appeals Nos. 41-I/78 and 42-I/78 decided on 20th November, 1979 and again deciding the same facts and holding a contrary view than those decided in the previous year without any evidence before it? (3) Whether the decision of a part of the year, i.e., 1st September, 1976 to 23rd October, 1976, under section 19(1) of the Act could be made applicable to the whole year particularly so when the main issue of implied contract of sale of bardana is sub judice before the Tribunal? 2.. The facts in brief necessary to appreciate the import of the questions re....

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....es to assess sales tax on the price of bardana on the basis of assumed sale thereof. In Hyderabad Deccan Cigarette Factory v. State of Andhra Pradesh [1966] 17 STC 624, it was held by the Supreme Court that whether there was an agreement to sell the packing materials was a pure question of fact and that question could not be decided on fictions or surmises. The burden lay upon the Commercial Tax Officer to prove that a turnover was liable to tax and he could ask the assessee to produce the relevant material. If the assessee did not produce the same, he could draw adverse inferences against the assessee, but he had to decide the crucial question whether the packing materials were the subject of the agreement of sale, express or implied. It w....