TaxTMI 
TaxTMI 
1990 (8) TMI 366
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....of the Board of Revenue holding the transactions to be "sale" is vitiated in law -by reason of improper rejection and/or non-consideration of relevant materials and evidence on record and being based on surmises, suspicion and conjectures? (3) Whether, on the facts and in the circumstances of the case, the Board of Revenue was correct in law in not accepting the clear and categorical findings recorded by the Assistant Commissioner of Taxes (Appeals) regarding the despatches made by the assessee to the three oil companies and was justified in law on the basis of the provisions of the Act applicable to the present case in placing the burden of proof on the assessee to show that the transactions in question did not amount to "sale" within the meaning of the Act and in recording its findings and conclusion on that basis? 3.. Briefly, the relevant facts are that M/s. Assam Oil Co. Ltd., Digboi (hereinafter referred to as "the assessee") had been carrying on the business of manufacturing petroleum and petroleum products at Digboi in Assam (hereinafter referred to as "the State") and selling and supplying the same within the State as well as places outside the State. The assessee ha....
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....age or hypothecation of or a charge or pledge on goods." (Emphasis* added). 7.. Mr. J.P. Bhattacharjee, learned counsel for the assessee, submitted that the "onus" was on the Revenue to prove that the transaction was sale and cited Commissioner of Sales Tax v. S.C. Jain [1988] 70 STC 45 (SC). We agree that in a taxing statute the onus lies on the Revenue to establish that the transaction was "sale" so as to be liable to incidence of tax and it was not for the assessee to prove that the transaction was not "sale". However, after the evidence had been produced and the basic relevant facts had been ascertained the question of "onus" could only be of academic significance. 8.. Mr. J.P. Bhattacharjee, learned counsel for the assessee, has submitted that the transaction even though it involved inter-State movement of goods was not "sale" but was "barter" because as consideration for the goods despatched by the assessee at the instance of its agent to the companies, the latter (the companies) had returned goods to the agent and consequently the transaction was not sale. In this connection reference was made to definitions of "sale" in section 54 and of "exchange" in section 118 of t....
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....luable consideration"? While we are inclined to think that the transfer of property in goods was for other valuable consideration because the expression "valuable consideration" has very wide scope and is preceded by the word "other" after the words, "cash" and "deferred payment" which should mean "any valuable consideration". 12.. Shri J.P. Bhattacharjee, has cited Devi Dass Gopal Krishnan v. State of Punjab [1967] 20 STC 430 (SC), where the expression "valuable consideration" in the definition of "purchase" as in section 2(ff) of the Punjab General Sales Tax Act which was similar to the definition of "sale" in section 2(g) of the Act, came up for consideration in the context of the question of competency of the State Legislature to make the amendment in the law and it was held by the Supreme Court that "the expression 'valuable consideration' took colour from the preceding expression 'cash' or 'deferred payment' and only meant some other monetary payment in the nature of cash or deferred payment". (Emphasis* supplied). Shri Bhattacharjee, has, therefore, contended that in view of the above meaning and scope of "valuable consideration" as interpreted by the Supreme Court the sa....
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....cluded and accordingly, the transaction, was not sale but just barter and in view of Devi Dass [1967] 20 STC 430 (SC) there was nothing left so far as the transaction was concerned for consideration. We have found it difficult to accept this submission because we do not find it reasonable to take the view that the transaction was over, because, in so far as the assessee was concerned, the goods having been despatched earlier and the agent having had received the goods in return, the transaction was not yet concluded and was still in process until the assessee had received the price or monetary value of the goods despatched earlier. The transaction of "sale" under the Act, in view of its purpose, clearly has very close nexus with the assessee, for the incidence of tax on the transaction falls on the assessee. Accordingly, in our opinion, in so far as the assessee was concerned, the transaction of transfer of its goods came to conclusion only when the assessee had received payment from its agent even though later, may be much later. We, therefore, think that the transfer of property in goods to the companies so far as the assessee was concerned had taken place for "deferred payment" ....