BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS revision is by the Assessing Officer against the order of Rajasthan Tax Board, Ajmer dt. 8. 12. 98 (Annexure/4) by which it affirmed the order passed by the Dy. Commissioner (Appeals) setting aside the levy of tax under the Central Sales Tax Act on the two transactions of Rs. 2,63,540/-and Rs. 2,83,434/-totalling Rs. 5,46,974/-by treating the same to be sale by the respondent-assessee as inter-State sale which was shown by the assessee as sale outside the State. Consequently the levy of interest and penalty was also set aside on the amount of tax determined on the aforesaid two sums. During the course of survey conducted at the business premises of assessee-respondent on 16. 12. 94 some loose papers were found at the business premises which included Annexure 1, 2 & 3 filed along with this revision petition. Annexure-1 was a letter from Narayan Industries on 1. 2. 94 sending a deaft of Rs. 2,70,000/-and requesting the assessee for sending cotton seed oil through tanker. In connection with this letter another letter Annexure/2 was also found from Jagdish & Company, Sriganganagar writing to the respondent-assessee that M/s. Narayan Industries is sending a demand draft of Rs. 2,70,000/-,. Tanker will reach the assessee which may be loaded by it. One item subjected to levy relates to this transaction and another item which relates to Annexure/3. The Annexure/3 is a communication from Guru Traders, Delhi to the respondent-assessee stating that along with letter, Truck No. DLI GA-1835 is sent in which 12 tone goods may be loaded. A draft has been sent earlier. This transaction through Jagdish & Company, Sriganganagar, the assessee-respondent was instructed to prepare the challan in the name of M/s. Vikram Marketing, 1/3, Palika Bazar, Behind Relief Cinema, J. P. O. Road, Ahmedabad with the assurance that `f' Form shall be sent on receipt of goods. In the books of accounts the assessee has shown both these transactions as sale outside the State and it was contended by the assessee before the Assessing Officer that goods have been sent to Commission Agent at respective places in pursuance of the aforesaid communication for sale outside State but they were not by themselves sale transactions by the assessee. Undoubtedly the assessee has produced the requisite Form `f' as envisaged u/s. 6a of the Central Sales Tax Act read with Rule 12 (5) of the Central Sales Tax (Registration & Turn-over) Rules, 1957 and the Form No. 18c under the Rajasthan Sales Tax Act. The Assessing Officer found on the basis of aforesaid three documents that the assessee has failed to discharge his burden to prove that the movement of goods at the instance of assessee from the State of Rajasthan to another State was otherwise than in pursuance of agreement to sale and was of the opinion that the assessee has camouflaged the transactions through requisite documents to appear as sale outside the State. Accordingly it levied tax on the aforesaid two items and consequently levied penalty for concealment of the said turn-over. The Dy. Commissioner (Appeals) on appeal was of the opinion that aforesaid letters could not be said to be evidence of prior agreement before movement of goods between the buyers and the sellers and until the Assessing Officer proves on record that there existed any prior agreement of sale between the parties, in pursuance of which the movement of goods have taken place, no tax can be imposed. With this finding it accepted the contention of the assessee that it was a case of sale outside the State as existence of contract for sale has not been proved because of the declaration Form furnished by the assessee.
(3.) THE aforesaid order of the learned Dy. Commissioner (Appeals) was affirmed by he Rajasthan Tax Board. Having heard learned counsel for the parties and giving my thoughtful consideration I am of the opinion that both the appellate authorities have seriously erred in their view of law on the burden of proof in the matter of establishing any existing contract at the time of movement of goods from one State to another before tax could be levied is on the Assessing Authority. The law appears to be otherwise. In this connection the provision of Section 6-A of the Central Sales Tax Act, 1956 (for short `the Act of 1956') may be noticed: Section 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 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 on 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 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 time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall be deemed for the purposes of this Act to have been occasioned otherwise than as a result of sale. A perusal of the aforesaid provision clearly makes out that burden is squarely on the assessee to prove that the movement of goods was occasioned from one State to another not by reason of sale but by reason of transfer of such goods by him to the destination where which is place of his business or to his agent or principal, as the case may be. The mode of providing evidence in this regard has also been prescribed under the aforesaid provision; that is by furnishing a declaration containing the prescribed particulars along with evidence of despatch of such goods. The production of Form by itself does not give rise to any presumption in favour of the assessee to discharge him from burden of proving the facts stated therein which may requires, the Assessing Authority to prove otherwise. Burden still continues with the assessee to prove the correctness of the details furnished by him to the satisfaction of the Assessing Authority in the inquiry that may be conducted by the Assessing Officer in that regard. Thus burden of proof at no stage is shifted to the Assessing Officer to prove that movement of goods from one State to another was in pursuance of a contract for sale but rest with the dealer to establish that movement of goods at his instance was otherwise than for reason of sale. ;