The burden of proving that the movement of goods from one State to another was occasioned otherwise than by way of sale lies on the dealer who claimed exemption from tax on the ground that there was in fact no sale.

JUDGMENT

R. C. PATNAIK, J. - On an application made by the Revenue under section 24(1) of the Orissa Sales Tax Act, the following questions were referred for opinion of this Court along with the statement of the case :

(i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the burden was on the Revenue to prove the inter-State sale even if no evidence was adduced by the assessee in support of the claim of branch transfer ?

(ii) If the answer of the Honourable Court is in the negative, whether claim of branch transfer could be proved by other evidence in lieu of form F ?

2. The assessee, a Government of Orissa undertaking, is engaged in manufacture of television sets as its factory at Industrial Estate, Bhubaneswar. It despatched T.V. sets worth Rs. 5,24,460.00 from Bhubaneswar to Calcutta. The assessing officer was of the view that the despatch of T.V. sets to Calcutta amounted to inter-State sale. Appeal by the assessee proved unsuccessful. It, however, succeeded before the Tribunal. The Tribunal upset the views of the original and appellate authorities holding that when the Revenue has failed to adduce any evidence to show that the transactions were covered by inter-State sales, the burden was not on the assessee to show that the sales were branch transfer. Mere despatch of goods from Orissa to outside the State was not exigible to Central sales tax. The Revenue could assess the sales turnover if it proved that the transactions were inter-State sales.

3. Inasmuch as the Central sales tax is not leviable in respect of transactions of transfer of goods from a head office or a principal to a branch or an agent or vice versa as these do not amount to sales, dealers evaded tax by showing genuine sales to third parties as transactions of transfer. With a view to plugging this loophole, section 6-A was incorporation into the Central Sales Tax Act, 1956 providing that the burden of proving that the transfer of goods in such cases was otherwise than by way of sale would lie on the dealer who claimed exemption from tax on the ground that there was in fact no sale. The notes on clauses accompanying the statement of objects and reasons for the incorporation of section 6-A read as under :

"This clause seeks to insert a new section 6-A in the principal Act for the purpose of providing that the burden of proving that any movement of goods from one State to another was occasioned otherwise than by way of sale shall be on the dealer making such claim. For the purpose of discharging this burden the dealer may produce a declaration in the prescribed form from the person in the other State to whom the goods have been sent along with evidence of such despatch of goods."

And section 6-A reads as under :

"6-A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. - (1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods.

(2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may, at the