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1994 Supreme(Raj) 555
Milap Chandra Jain J.
SUBHKARAN JAICHANDLAL
Versus
COMMERCIAL TAXES OFFICER, ANTI EVASION, BIKANER.
S.B. Sales Tax Revision Petition No. 717 of 1992
Decided On: Decided On : 15-12-1994
Vineet Kothari, for the petitioner.
B. C. Mehta and Dinesh mehta, for the respondent.
A pro forma invoice is not a proper document within the meaning of section 22A(7) of the Rajasthan Sales Tax Act, 1954.
Headnote:
SALES TAX - PENALTY - PRO FORMA INVOICE - Whether pro forma invoice is a proper document within the meaning of section 22A(7) of the Rajasthan Sales Tax Act, 1954.
Fact of the Case:
A consignment of 140 bags of tea was sent from Ahmedabad to Pilibhanga by five different firms. The petitioner claimed that the tea was sent for sale on commission, while the department contended that it was an outright sale. The petitioner had pro forma invoices for the consignment, but they did not bear the stamp of the sales tax outpost at Abu Road.
Finding of the Court:
The court held that the pro forma invoices were not proper documents within the meaning of section 22A(7) of the Act. The court found that the petitioner had submitted a duly stamped declaration in form 18-A along with an affidavit stating that the goods were sent for sale on commission. The court also noted that the petitioner had provided the registration numbers of the consignors under the Gujarat Sales Tax Act.
Issues: Whether the transfer of 140 bags of tea from Ahmedabad to Pilibhanga involved a sale as defined in section 2(o) of the Act or was simply a transaction between the principals and commission agent involving no sale.
Ratio Decidendi: The court held that a pro forma invoice is tentative in nature and gives intimation to the consignee about the details of the goods. It is not a proper invoice. In a transaction between the principal and his agent, a pro forma invoice is issued and not a regular invoice, cash memo, or bill as there is no sale of goods between them.
Final Decision: The court allowed the revision petition and set aside the order of the Tribunal. The penalty imposed on the petitioner was quashed.
MILAP CHANDRA, J. - This revision petition has been filed against the order of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer, dated June 1, 1992, by which he allowed the appeal and set aside the order of the learned Deputy Commissioner (Appeals), Bikaner, dated January 15, 1986, quashing the penalty imposed under section 22A(7), Rajasthan Sales Tax Act, 1954 (hereinafter to be called "the Act") by the Commercial Taxes Officer, Anti-Evasion, Bikaner.
2. It is contended by the learned counsel for the petitioner that the learned Member of the Tribunal seriously erred to consider that the consignment of 140 bags of tea was sent from Ahmedabad to Pilibhanga by the seller to the purchaser, in fact these bags were sent for sale on commission to the petitioner and this mistake in the basic fact resulted in the passing of the impugned order. He also contended that there was no question of sending pro forma invoices along with the goods, if the tea had been sold and in that case cash memos or the bills would have been attached and this fact was duly disclosed the same day by the partner of the petitioner-firm Smt. Rama Devi Maloo in her affidavit. He further contended that it is not in dispute that at the time of checking, the driver had shown to the checking officer the transport receipts and the pro forma invoices in respect of the entire 140 bags of tea. He lastly contended that the sale of these 140 bags of tea had duly been shown and assessed in the hands of the petitioner vide the assessment order dated February 25, 1989 (annexure 6).
3. In reply, it is contended by the learned Standing Counsel for the department that the said invoices clearly mentioned "against 'C' form", from this fact alone it can well be said that the five firms of Ahmedabad sold the said tea to the petitioner and, therefore, proper documents required under section 22A(3) of the Act were not with the said truck and the assessing authority rightly imposed penalty. He also contended that the jurisdiction of this Court while hearing revision petition under section 15(1) of the Act is very limited.
4. The 140 bags of tea were sent through truck No. RSN 7185 on October 10, 1985 from Ahmedabad to Pilibhanga, the bags were checked at sales tax outpost, Abu Road on October 10, 1985 vide No. 1018597 and were again checked on October 12, 1985 at Pilibhanga. Admittedly, at that time the said bags of tea were checked and seized, transport receipts and pro forma invoices were with the driver. The question is as to whether the pro forma invoices were proper documents within the meaning of section 22A(7) of the Act. Notice was issued to the petitioner. Its partner Smt. Rama Devi Maloo filed her affidavit on October 13, 1985, before the Commercial Taxes Officer, Anti-Evasion, Bikaner, stating that the goods were despatched from Ahmedabad for sale to her firm. She was not at all cross-examined on her affidavit. Therefore, there was no reason to disbelieve this uncontroverted and unrebutted affidavit. Reference to Mehta Parikh and Co. v. Commissioner of Income-tax [1956] 30 ITR 181 (SC) at page 187; AIR 1956 SC 554, para 13, Sohan Lal Gupta v. Commissioner of Income-tax [1958] 33 ITR 786 at page 791; AIR 1958 All. 21 at page 23 may be made here. All necessary details of the consignment are mentioned in the pro forma invoices. If the pro forma invoices did not bear the stamp of the sales tax outpost, Abu Road, it was not the fault of either the consignee or the consignor. It was the fault of the authorities of the sales tax outpost, Abu Road. The declaration in form 18-A were duly submitted by Smt. Rama Devi Maloo along with her said affidavit on October 13, 1985. Twenty-five bags of tea sent by Trade Centre were duly insured for Rs. 31,000. From the mere fact that the said 140 bags of tea were sent by five different firms working in one building and invoices were prepared by one person it cannot be said that the transaction was not of transfer of consignment
