- (1.) THE facts of the case will appear from the petition for revision and the order of the Additional Commissioner, Commercial Taxes, dated 25th August, 1954.
(2.) THE learned Advocate for the petitioners took up only two points before me, (1) that the petitioners have succeeded by producing sufficient evidence to show that the goods, in respect of which claim had been made under section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941, had been despatched by the petitioners themselves to addressees outside West Bengal and (2) that the addition of Rs. 17,94,030 made by the assessing authority to the petitioners' taxable turnover on account of the transfer of delivery orders to the Adviser on Jute Supplies, Government of India, was illegal, as these were not sales but only transfer of actionable claims which are excluded from the definition of "goods" in the Act. As for the first point, the learned Advocate for the petitioners had to admit that his clients could not produce any documents, such as bill of lading, to show that the despatch of the goods had been made by or on behalf of the petitioners. He only relied on entries in his clients' books of accounts and also mates' certificates to show that they had paid the cost of despatch. So far as the production of evidence on this point is concerned, the Board had explained the law in Cases Nos. 67 and 67A of 1948 (Messrs. Ramanlal Kondai). The Board stated there :- "The Act in question (i.e., the Sales Tax Act) says nothing about the admissibility of fresh evidence by appellate authorities. So the practice and principles of the Civil Procedure Code are to be followed here ... Now the relevant rule under the Civil Procedure Code is to be found in rule 27 under Order 41 which clearly lays down that neither party in an appeal has a right to adduce additional evidence before the appellate authority though the latter may admit such evidence if it considers this necessary in order to enable it to come to a decision ..... He appears to have exercised his discretion quite properly. But even if it be admitted for the sake of argument that he did not act with due discretion in refusing to admit fresh evidence, the petitioner has not right of appeal against such an action of the appellate authority : In the goods of Premchand ((1894) 21 Cal. 484)". The learned Advocate for the petitioners has made much of the fact that the Additional Commissioner discussed the additional evidence on this question, though he specifically said that he did not admit it. The mere discussion of such evidence by an appellate authority does not amount to its admission and it is not possible to revise the order of the Additional Commissioner on this ground only, especially as the evidence itself is not enough to satisfy the Additional Commissioner that the goods had been despatched by or on behalf of the petitioners, as required by section 5(2)(a)(v) of the Act.
(3.) AS for the second argument of the learned Advocate for the petitioners, a complete answer is provided by the definition of "document of title of goods" in section 2(4) of the Sale of Goods Act, where it is specifically laid down that order for the delivery of goods amounts to documents of title demands. This point was further clarified by the Calcutta High Court in Anglo-India Jute Mills Co. v. Omademull ((1911) 38 Cal. 127). There it was decided that a delivery order is recognised as a document of title under section 108 of the Contract Act and section 137 of the Transfer of Property Act, and under a delivery order the transferee acquires a title to the goods to which it relates.;