MILAP CHANDRA, J. - (1.) THIS revision petition has been filed against the order of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer, dated June 1, 1992, by which he allowed the appeal and set aside the order of the learned Deputy Commissioner (Appeals), Bikaner, dated January 15, 1986, quashing the penalty imposed under section 22a (7), Rajasthan Sales Tax Act, 1954 (hereinafter to be called "the Act") by the Commercial Taxes Officer, Anti-Evasion, Bikaner.
(2.) IT is contended by the learned counsel for the petitioner that the learned Member of the Tribunal seriously erred to consider that the consignment of 140 bags of tea was sent from Ahmedabad to Pilibhanga by the seller to the purchaser, in fact these bags were sent for sale on commission to the petitioner and this mistake in the basic fact resulted in the passing of the impugned order. He also contended that there was no question of sending pro forma invoices along with the goods, if the tea had been sold and in that case cash memos or the bills would have been attached and this fact was duly disclosed the same day by the partner of the petitioner-firm Smt. Rama Devi Maloo in her affidavit. He further contended that it is not in dispute that at the time of checking, the driver had shown to the checking officer the transport receipts and the pro forma invoices in respect of the entire 140 bags of tea. He lastly contended that the sale of these 140 bags of tea had duly been shown and assessed in the hands of the petitioner vide the assessment order dated February 25, 1989 (annexure 6 ). In reply, it is contended by the learned Standing Counsel for the department that the said invoices clearly mentioned "against 'c' form", from this fact alone it can well be said that the five firms of Ahmedabad sold the said tea to the petitioner and, therefore, proper documents required under section 22a (3) of the Act were not with the said truck and the assessing authority rightly imposed penalty. He also contended that the jurisdiction of this Court while hearing revision petition under section 15 (1) of the Act is very limited. The 140 bags of tea were sent through truck No. RSN 7185 on October 10, 1985 from Ahmedabad to Pilibhanga, the bags were checked at sales tax outpost, Abu Road on October 10, 1985 vide No. 1018597 and were again checked on October 12, 1985 at Pilibhanga. Admittedly, at that time the said bags of tea were checked and seized, transport receipts and pro forma invoices were with the driver. The question is as to whether the pro forma invoices were proper documents within the meaning of section 22a (7) of the Act. Notice was issued to the petitioner. Its partner Smt. Rama Devi Maloo filed her affidavit on October 13, 1985, before the Commercial Taxes Officer, Anti-Evasion, Bikaner, stating that the goods were despatched from Ahmedabad for sale to her firm. She was not at all cross-examined on her affidavit. Therefore, there was no reason to disbelieve this uncontroverted and unrebutted affidavit. Reference to Mehta Parikh and Co. v. Commissioner of Income-tax [1956] 30 ITR 181 (SC) at page 187; AIR 1956 SC 554, para 13, Sohan Lal Gupta v. Commissioner of Income-tax [1958] 33 ITR 786 at page 791; AIR 1958 All. 21 at page 23 may be made here. All necessary details of the consignment are mentioned in the pro forma invoices. If the pro forma invoices did not bear the stamp of the sales tax outpost, Abu Road, it was not the fault of either the consignee or the consignor. It was the fault of the authorities of the sales tax outpost, Abu Road. The declaration in form 18-A were duly submitted by Smt. Rama Devi Maloo along with her said affidavit on October 13, 1985. Twenty-five bags of tea sent by Trade Centre were duly insured for Rs. 31,000. From the mere fact that the said 140 bags of tea were sent by five different firms working in one building and invoices were prepared by one person it cannot be said that the transaction was not of transfer of consignment for sale but was of outright sale. The Tribunal has observed in its order that the petitioner had failed to furnish the registration numbers of the consignors under the Gujarat Sales Tax Act. In all pro forma invoices registration numbers under the Gujarat Sales Tax Act are duly mentioned. The Tribunal has also relied upon the report of the Sales Tax Inspector. The points noted in para No. 2 of the report do not show that the 140 bags of tea were sold by the Ahmedabad firms to the petitioner. There can be no question that all the five pro forma invoices should have consecutive numbers. They were of the different firms. The Tribunal has rightly observed that there is a difference between regular invoice and pro forma invoice. Pro forma invoice is tentative in nature and it gives intimation to the consignee about the details of the goods. It is not a proper invoice. In transaction in-between the principal and his agent, pro forma invoice is issued and not regular invoice or cash memo or bill as there is no sale of goods in-between them. In view of this, it is very difficult to endorse the views of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer. It is clear from the aforesaid discussion that the revision petition involved question of law, namely, whether under the abovenoted facts and circumstances the transfer of 140 bags of tea from Ahmedabad to Pilibhanga involved sale as defined in section 2 (o) of the Act or was simply transactions in-between the principals and commission agent involving no sale in-between them. The revision petition is perfectly maintainable. Accordingly, revision petitions is allowed. The order of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer, dated June 1, 1992, is set aside. Penalty, if recovered, will be refunded to the petitioner with interest at the prescribed rate within two months. Petition allowed. . ;