V.Rengasamy, (Vice Chairman) - (1.) THE revision case is directed against the order of the Appellate Tribunal, Additional Bench, Chennai in T.A. No. 1080 of 1990, dated May 8, 1991. The revision is by the Revenue. The respondent -assessees are the manufacturers and dealers in plastic extruder machines, under the name and style of Jolite Engineering Works. For the assessment year 1988 -89, the assessee had filed return for a total and taxable turnover at Rs. 8,87,205. The check -up of accounts revealed that the assessee had issued delivery challan No. 152 dated February 25, 1989 and delivered one re -processing extruder for Rs. 1,35,200 to one S.A.R. Plastic Cainds, Chennai. But the sale bills were not raised till March 31, 1989. Though the delivery was effected on February 25, 1989, the sale bill was raised only in the month of May, 1989. As the turnover shown was below Rs. 10 lakhs, the assessing authority took the view that the sale effected by delivery challan dated February 25, 1989 was not brought to account, otherwise, the turnover would exceed Rs. 10 lakhs, attracting additional sales tax. The assessing authority therefore added the value of the goods supplied under the challan mentioned above and determined the taxable turnover at Rs. 10,22,405 taxed at 8 per cent. Penalty also was levied under Section 23 of the Tamil Nadu General Sales Tax Act, 1959. The first appellate authority agreed with the findings of the assessing authority, but in the second appeal, the appeal was allowed by the Appellate Tribunal. Therefore, the revenue has come forward with this revision before us challenging the order of the Appellate Tribunal.
(2.) IT is not in dispute that under the delivery challan No. 152 dated February 25, 1989, the machineries were supplied to a customer for a value of Rs. 1,35,200, but sale bill was not raised on this date and therefore, for the assessment year 1988 -89, the sale of the machineries was not brought to account. But the assessing authority has included this value in the taxable turnover and levied tax. The assessee, though raised the delivery challan on February 25, 1989, the sale bill was raised only in the month of May, 1989. The explanation offered by the assessee was that though the goods were supplied on February 25, 1989, the price was not settled and therefore, the sale bill was not raised till the price was settled in the month of May, 1989. The assessing authority as well as the first appellate authority did not accept this explanation and has found that as the sale was effected even in the month of February, 1989 the value of the machineries should be brought as the taxable turnover for the purpose of levy of tax. As a matter of fact, the assessee contended before the first appellate authority that the goods were returned by the customer and therefore, the sale was not brought to accounts ; and in the month of May, 1989, the same goods were resold to the customer and for the sale price, the bill was raised and brought to the books of accounts in the next assessment year, Even though before the assessing authority, it was contended that as the price was not settled between the parties, sale bill was not raised in February, 1989, the assessee took a different contention before the Appellate Assistant Commissioner that the goods were returned and therefore, sale bill could not be raised. However, before the second appellate authority, this plea was given up and once again, resumed to the original explanation that the price was not settled between the parties and therefore, sale bill was not raised.
(3.) THE learned Government Advocate Thiru Mahadevan contended before us that the assessee would accept that the goods were supplied under the delivery challan only for price fixed as shown in the delivery challan and therefore, the sale was completed even by February 25, 1989 and when the sale was effected, goods were transferred and the property in goods had passed on to the purchaser, the assessee could not contend that there was no completed sale to raise the sale bill and therefore, the addition of sale price, namely, Rs, 1,35,200 in the taxable turnover for the assessment year 1988 -89 is proper. But the Appellate Tribunal, without considering this aspect, has deleted the turnover, accepting that as the price was not settled between the parties, there was no sale in the assessment year 1988 -89 and therefore, the turnover is not taxable. The learned counsel Thiru Sivanandam appearing for the respondent -assessee, supported the findings of the Appellate Tribunal. He also contended that there was no completed sale on February 25, 1989 in view of the reason that the price was not settled between the parties and therefore, the Tribunal is perfectly correct in deleting the turnover of Rs. 1,35,200 mentioned in the delivery challan as it was not taxable sale price on that date. We considered the contention of both sides. When the assessee had raised delivery challan dated February 25, 1989 for the supply of certain machineries to their customer and the price also is quoted in the delivery challan and the goods were supplied to the customer who had accepted delivery of the goods, the property in the goods were transferred and the sale is completed even if it is taken that the sale price was not finalised.;