V. K. SINGHAL, J. - (1.) THIS revision petition has been filed by the assessing authority under section 15 (2) of the Rajasthan Sales Tax Act, 1954, raising the following question of law arising out of the order of the Board of Revenue : " Whether, in the facts and circumstances of the case, the Board of Revenue was justified in setting aside the levy of tax made by the assessing authority under section 2 (s) (iv) of the Rajasthan Sales Tax Act ?"
(2.) THE brief facts of the case are that the assessee is having its branches at Delhi and Bombay and in respect of the assessment year 1976-77, "c" forms of Rs. 4,05,513 were submitted before the assessing authority. But the assessing authority found that the said "c" forms had been issued by the Bombay and Delhi branches as incorporated in the registration certificate of the assessee and therefore, held that the transaction is not a sale but only branch transfer. Since the goods so transferred were purchased against the form S. T. 17 from the manufacturer without payment of any tax, the assessee was held liable for payment of purchase tax in respect of such purchases. Against this assessment order an appeal was preferred to the Deputy Commissioner (Appeals) and the Deputy Commissioner (Appeals) held that there is no transaction of sale and therefore, provisions of section 5-A and the provisions of section 2 (s) of the Rajasthan Sales Tax Act are attracted in the case. The levy of purchase tax was held justified and it was further held that since the tax has been levied on the bill amount, the purchase value may be examined by the assessing authority for the purpose of levy of purchase tax. Against this order, the revision was preferred to the Board of Revenue for Rajasthan and the learned Member of the Board of Revenue held that the provisions of section 5-A could be attracted only when the purchases have been made from unregistered dealers and the provisions of section 2 (s) (iv) could be invoked when the goods purchased by the assessee have been utilised for some other purposes. It was also held that in the present case, the transaction is an inter-State sale and therefore, the provisions of section 5-A are not attracted. The learned counsel for the assessing authority has submitted that the provisions of section 5-A has been amended by the Act No. 8 of 1990 with effect from April 1, 1960 and that the Board of Revenue has erred in treating the transaction to be an inter-State sale. The argument of Mr. Bhandari, the learned counsel for the respondent, is that the order of the Board of Revenue is correct and there is no liability of tax on the assessee and the Central sales tax has already been deposited. I have heard the arguments of both the parties. From the judgment of the Board of Revenue, it is evident that the finding of the appellate authority as well as the assessing authority with regard to the fact that the goods were sent to the branch have not been disturbed. There cannot be any sale between the branch and the head office or vice versa. For the sale, there must be two persons competent to transfer the property for money consideration as a result of agreement. No element of sale has been proved in this case and the transfers to the branches which have issued "c" forms cannot be considered to be a sale and therefore, is not an inter-State sale. Once it is held that the transaction is not a sale, then the question would arise that the purchase by the assessee against the declaration form for resale or for inter-State sale which have been made from a manufacturer becomes liable to tax. The new provisions of section 5-A as inserted by Act No. 8 of 1990 makes the liability of the dealer to pay the tax on the purchase price of such gods with retrospective effect and therefore, the assessee is liable to pay purchase tax. The order of the Board of Revenue being contrary to the provisions of the Act is quashed and the matter is sent back to the assessing authority for determining the liability afresh in view of the provisions of section 5-A of the Act. The revision application is allowed. No order as to costs. Petition allowed. . ;