@JUDGMENTTAG-ORDER
K. Raviraja Pandian, J.@mdashThis tax case revision petition has been filed against the order of the Tribunal, dated September 3, 1991, made in
Tribunal Appeal No. 1085 of 1990 for the assessment year 1985-86 by contending that the Tribunal grossly erred in its conclusion that the
Revenue has not established even on a single case that the assessee has handled the goods. The finding of the Tribunal that the Revenue failed to
prove that the assessee has received the goods from the sellers and then sold them to the intending purchasers is factually incorrect.
2. The facts : The assessee was a dealer in stainless steel utensils having its place of business at No. 119, Sri P.S. Sivasamy Salai, Madras. The
place of business of one Tvl. V.P. Palanichamy Nadar & Co., Thanjavur was inspected by the Inspecting Officers on December 13, 1985. During
the search, the inspecting officers recovered the demand draft, order forms and letter book containing copies of letters from one Thiru D. Raju,
S/o. R. Damodharan. The said Raju is stated to be the son of R. Damodharan, who is the owner of Rajalakshmi Industries. On the basis of the
record, the assessing officer has determined the suppression in a sum of Rs. 6,79,297 in the case of the assessee and levied surcharge, additional
surcharge and additional tax in addition to the penalty in a sum of Rs. 1,19,217. The Appellate Assistant Commissioner on appeal at the instance
of the assessee sustained the assessment and reduced the penalty and fixed it to Rs. 79,479. The assessee further filed an appeal to the Tribunal.
The Tribunal allowed the appeal in its entirety and held in favour of the assessee. The correctness of the same is canvassed before us.
3. We heard the learned counsel appearing for the Department and perused the materials available on record.
4. It is the case of the assessee that after the assessment year 1982-83, they were only acting as an agent on commission basis. They acted as
agent to Bombay principals as well as the local principals. The assessee booked orders and forwarded the same to the principal for execution. The
principals would directly supply the goods to the customers and sometimes the copy of the bills were sent to the assessee for collection of the sale
price. The assessee was entitled to sale commission for the orders booked and the assessee never handled the goods and the assessee''s principals
raised bills and paid the local taxes under the Central Sales Tax Act, wherever applicable. The documents unearthed at the time of the inspection
of Tvl. V.P. Palanichamy Nadar & Co., premises, i.e., the demand draft and the order forms and letter book ipso facto cannot be regarded as one
establishing the fact that the assessee has handled the goods and sold the ultimate customer by raising sale bills or invoices. The goods have never
reached the assessee. The ultimate fact-finding authority, the Tribunal after analysis of the facts and the evidence adduced, has come to the
conclusion that the Revenue has not established even a single case that the appellant has ever handled the goods of any of the transaction. The
Revenue miserably failed to prove that the assessee has received the goods from the seller and in turn sold them to the intending purchasers, but
there are volumes of evidence to prove that the assessee has procured order forms from various customers and placed the same before their
principals and the principals have dispatched the goods directly to the persons, who placed orders with the assessee. The assessee has obtained
only a sales commission. As already stated in certain case, the assessee has collected the money from the purchasers and sent it to the principal by
way of demand drafts. This per se cannot be regarded a local sales/inter- State sales effected by the assessee in the absence of any other factor or
any other materials supporting the case of the Revenue that the assessee has transacted the local sales or inter-State sales by himself. On the basis
of the materials adduced to establish that the assessee has acted only as a commission agent, the Tribunal has in our view rightly come to the
conclusion that the order of the assessing officer as well as the appellate authority in so far as sustaining the levy of suppression and the other
component is not in consonance with the statutory requirement.
5. Hence, we do not find any merit for entertainment of the revision. In addition to that, on a similar set of facts, action has been initiated against the
very same assessee in respect of assessment years 1983-84 and 1985-86 and the Tribunal set aside the order of the assessing officer and that of
the first appellate authority confirming the levy of assessment. In respect of those assessment years, it is admitted across the bar that the Revenue
has not agitated the matter any further, having regard to the circumstances of the case. This factor also title the case in favour of the assessee.
Hence, this tax case revision is dismissed.
