K. S. LODHA, J. - (1.) THIS revision under section 15 (1) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act") has been filed by the assessee, Gewar Chand Kesari Mal, against the order of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer, dated 14th August, 1987, by which the petitioner's application for rectification of an earlier order of the Tribunal dated 15th May, 1981 was rejected as also against the original order passed in appeal by the said Tribunal on 15th May, 1987.
(2.) A preliminary objection was raised by the learned counsel appearing on behalf of the sales tax department that no revision lies before this Court against an order passed under section 17 of the Act as a revision only lies to this Court against an order passed under section 17 of the Act under section 15 (1) of the Act. It was also objected that one revision could not have been filed against two different orders. A third objection was also that if the revision is to be treated against the order dated 15th May, 1987 passed in appeal, then it is barred by time. Faced with this situation, the learned counsel for the petitioner submitted that he would not press this revision against the order dated 14th August, 1987, by which the rectification application was dismissed. He would confine this revision against the order dated 15th May, 1987 passed in appeal. That being so, the first preliminary objection and the second preliminary objection do not now survive. So far as the third preliminary objection is concerned, the learned counsel for the petitioner has moved an application under section 5 read with section 14 of the Limitation Act for condoning the delay in filing the revision against the order dated 15th May, 1987 and an affidavit of Gewar Chand in support of the application under section 5 read with section 14 of the Limitation Act. It is mentioned in the application that in an earlier judgment of the Tribunal dated 29th September, 1986 in the case of the petitioner himself another learned Member of the Tribunal had taken a contrary view from the one taken by the other learned Member by his order dated 15th May, 1987 in respect of the provisions of section 9b (2) of the Act read with rule 42a (2) of the Rajasthan Sales Tax Rules, 1955 (hereinafter referred to as "the Rules") and the form S. T. 41 and, therefore, the petitioner thought it proper to file an application for rectification of the order dated 15th May, 1987 and diligently pursued the same but that application had been rejected by the learned Member by his order dated 14th August, 1987 and, therefore, he was compelled to file the present revision against that order. In these circumstances the delay occasioned in filing the revision within time deserves to be condoned. No counter-affidavit has been filed on behalf of the department and having considered the circumstances of the case, I am of the opinion that the delay in filing the revision against the order dated 15th May, 1987 deserves to be condoned and is hereby condoned. I have heard the learned counsel for the parties on the merits of the revision. Before I come to the decision it may be mentioned that the assessee is a registered partnership firm and a registered dealer under the Act. He had effected certain sales through his commission agent and wanted exemption from payment of sales tax on those sales by virtue of section 9b (2) of the Act. He, however, could not furnish the form S. T. 41 in support of his claim either before the assessing authority or the appellate authority or the Tribunal and his contention was that the commission agent had refused to supply him form S. T. 41 unless and until he cleared the outstanding of the commission agent, however, he had produced certain documents before the assessing authority which would have gone to show that the sales had been effected by the commission agent of the dealer who had collected tax thereon and in all probability must have deposited the same and on the basis of this evidence, the authorities below could have satisfied themselves whether the tax in respect of such goods had been paid by the commission agent or not, and if they were not fully satisfied, they could have made further enquiry by summoning or examining the record of assessment of the tax of the commission agent under section 24 of the Act but the authorities concerned including the learned Member of the Tribunal were of the opinion that the only mode of proving that the commission agent had paid the tax regarding which exemption was being claimed by the principal was producing the form S. T. 41 and, therefore, while deciding the petitioner's appeal on 15th May, 1987 the learned Member granted him time up to 20th June, 1987 to produce form S. T. 41 before the assessing authority and he observed that if forms S. T. 41 are produced relief will be given to the assessee and if they are not produced the assessment order made by the authorities below will become final. He further observed that in order to obtain relief under rule 42a of the Rules, it was essential for the assessee to produce the form S. T. 41. The contention of the learned counsel for the petitioner is that as a matter of fact the production of form S. T. 41 is only one of the modes for proving that the tax in respect of the goods had been paid by the commission agent and, therefore, the principal is entitled to exemption from being taxed on those sales. Non-production of form S. T. 41 cannot be fatal to the claim of the principal to the exemption if by other evidence he can establish that as a matter of fact the goods transferred by him to his commission agent had been sold by the commission agent and that the commission agent had collected and paid tax on those sales. A perusal of section 9b (2) of the Act, which reads as follows : " (2) If the principal on whose behalf the commission agent has sold goods shows to the satisfaction of the assessing authority that the tax has been paid by his commission agent on such goods under sub-section (1), the principal shall not be liable to pay the tax again in respect of the same transaction" Would go to show that in order to get exemption under this sub-section, the burden has been cast upon the principal to satisfy the assessing authority that the tax had been paid by his commission agent, the mode of proving that the commission agent had paid tax on such goods under sub-section (1) has not been specified in this sub-section. Rule 42a (2) further says that : "where any principal claims that he is not liable to pay any tax under the Act in respect of any goods on the reason of transfer for sale of such goods by him to his commission agent and not by way of sale, the burden of proving that the tax in respect of such goods has been paid by the commission agent shall be on the principal and for this purpose he may produce before the assessing authority a certificate of sale proceeds thereof in form S. T. 41 duly filled and signed by the commission agent, who shall issue the same to his principal from the bound book bearing printed serial numbers, and shall keep the carbon copy thereof for his record. " Therefore, under this rule one of the modes provided is by producing before the assessing authority a certificate of the sale proceeds in form S. T. 41. This rule also does not say that it is the only mode of proving this. It leaves it open to the principal to resort to other proofs in order to satisfy the assessing authority that the tax on such goods had been paid by the commission agent. The other sub-rules of rule 42a also do not in any way restrict the proof to the production of form S. T. 41. It may also be pointed out that in rule 42a (2) of the Rules, while referring to the mode of proving the fact of payment of tax by the commission agent the word "may" has been used and not "shall", which also supports the above view that this method of proof is only one of the ways in which principal can establish the fact that the tax had been paid by the commission agent and in order to facilitate the proof of this fact a facility has been provided for by introducing form S. T. 41.
(3.) NOW in this case although the assessee has not been able to produce the form S. T. 41 but he has tried to place on record certain other documents and material in order to satisfy the assessing authority that the goods transferred by the assessee to his commission agent had been sold by the commission agent who had realised tax and must have paid the same to the department. These documents are exhibit 1 notice issued by the assessee to his commission agent, exhibit 2 a reply sent by the commission agent to the assessee, exhibit 3 the statement of accounts sent by the commission agent to the assessee and exhibits 4, 5, 6 and 7 bills by which the commission agent had sold the goods transferred to him and had realised tax on the sales. It was incumbent upon the assessing authority as also the learned Deputy Commissioner (Appeals) and the learned Member of the Rajasthan Sales Tax Tribunal to have considered these documents in order to arrive at the finding whether in fact the goods had been transferred by the assessee to his commission agent and the commission agent had sold them, realised the tax and paid the same. This has not been done. Apart from this, section 24 of the Act gives powers to the assessing authority and the appellate authority as are vested in a court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters : (a) enforcing the attendance of any person and examining him on oath or affirmation; (b) compelling the production of documents; and (c) issuing commission for examination of witnesses. The assessing authority or the appellate authority could very well have exercised those powers in order to arrive at a conclusion whether the contention of the assessee that the tax had been paid by his commission agent in respect of the sales of goods which had been transferred to the commission agent and even if they had not fully been satisfied in this respect on the basis of the documents filed by the assessee, they could have further looked into the record of the assessment of the commission agent in order to find out whether as a matter of fact the commission agent had collected and paid the tax on the sales of the goods which were transferred to him by his principal and which he had himself sold. In these circumstances I am clearly of the opinion that the order of the learned Member of the Rajasthan Sales Tax Tribunal restricting the mode of proof to the production of form S. T. 41 and directing that if the said forms were not submitted by the assessee before the assessing authority within the prescribed time the assessment orders already passed shall become final was not correct and is liable to be set aside. As a matter of fact the learned Member should have either himself considered the documents already produced by the assessee or should have directed the assessing authority to look into those documents and then arrive at a finding whether the assessee was entitled to the benefit under section 9b (2) of the Act read with rule 42a (2) of the Rules. I, therefore, accept this revision, set aside the order of the learned Member, Sales Tax Tribunal, Ajmer, dated 15th May, 1987, so far as it relates to the question under section 9b (2) of the Act and rule 42a (2) of the Rules and direct him to either consider the documents produced by the assessee and act under section 24 of the Act or to direct the assessing authority to do the needful keeping in view the observations made above. The part of the order relating to the penalty under section 7aa of the Act has not been challenged before me at the time of the arguments and, therefore, that part of the order shall remain intact. ;