Prakash Krishna, J. - (1.) THE Commissioner of Sales Tax , U.P. Lucknow has challenged the legality and validity of the order dated 21.12.1992 passed by the Sales Tax Tribunal, Ghaziabad in second appeal No. 575 of 1990 relating to the Assessment Year 1982 -83 (Central).In the memo of revision the following question of law has been raised: Whether on the facts and in the circumstances of the case the Sales Tax Tribunal was legally justified to hold that transaction in question cannot be treated as sale and consequently is exempt from tax despite the fact that evidences on record reveal otherwise?
(2.) THE facts are not much in dispute. Before the Assessing Officer in respect of the Assessment Year 1982 -83 (Central), the dealer opposite party's claim for exemption from Central Sales Tax on certain transactions mentioned in the Assessment Order on the ground that the goods were returned after sale, was rejected. The Assessing Officer found that the claim for exemption cannot be entertained as the goods were not returned within six months from the date of sale as required under the Central Sales Tax Act. In absence of any material on record the case that these goods were sent for approval of the purchasers was disbelieved and was not accepted. The exemption on the ground of return of goods/disapproval by the purchaser was claimed on the turnover of Rs. 17, 11, 164/ -. The said order dated 15.3.1987 was confirmed by the First Appellate Authority in Appeal No. T -239 of 1989 by the order dated 12.4.1990. The Tribunal, however, in the second appeal filed at the instance of the dealer opposite party, has partly accepted the claim of the dealer opposite party with respect to the turnover of Rs. 9, 74, 000/ -, the sales made to M/s. Physical Research Laboratory, Navrangpura Ahmadabad. It was very much influenced by the fact that in the income tax assessment, the Commissioner Income Tax (Appeal) has found in his order dated 15.4.1998 that there was no such sale to M/s. Physical Research Laboratory, Navrangpura Ahmadabad, without recording any finding on its own.
(3.) THE contention of the learned standing counsel on behalf of the department in the present revision is that on the facts which are not in dispute, no exemption on the said turnover of Rs. 9, 74, 000/ - from the Central Sales Tax Act, could be granted to the dealer opposite party. He submits that it was found even by the Tribunal that the dealer opposite party has received 95% of the sale price from its customer which was returned thereafter. The finding of the Tribunal that no sale or purchase took place as the goods was never in deliverable state, on the facts of the case is unsustainable. On the other hand, the learned Counsel for the dealer opposite party supports the impugned order.;