Ram Labhaya, J.
1. This is a reference
under Section 32(3) Assam Sales Tax Act, 1947.
from the Commissioner of Taxes, Assam.
2. Briefly stated the facts leading to the reference are as follows :
The assessees (M/s. Sagarmal Sawarmal) were trading in jute in the Goalpara district. The Superintendent of Taxes, Goalpara assessed them under Section 17(3) Assam Sales Tax Act in respect of their turnover from 2,177 maunds of jute despatched by their firm to Calcutta during the period which ended on 31-3-1948. The assessees appealed to the Assistant Commissioner, who reduced the amount on which the assessment had been made. The assessment at the appellate Stage was reduced to the turnover from 2,002 maunds despatched to the Jute Presses as consignees. A petition of revision was filed against the appellate order. It was urged before the Commissioner of Taxes that the quantity of jute in question was despatched to Calcutta for sale as ready goods by the assessee Calcutta agents. The Jute Presses were shown as consignees, because there were then restrictions on booking and the jute could be consigned only to Jute Presses. According to the assessee, the Jute Presses were benami transferees. In regard to this contention the Commissioner of Taxes has observed while stating the facts of the case in his reference that there was no evidence as to the alleged restriction on booking of jute to parties other than Jute Presses and the evidence in support of the alleged subsequent diversion to the assessee's agent was not accepted as sufficient.
3. From the facts stated it is clear that the assessee's contention that Jute Presses were merely benami consignees, and that they endorsed the documents to the agents of the assessees who sold the goods as ready goods 'on behalf of the consignors at Calcutta, was not accepted. All that then we are left with is that the consignments were despatched by the assessee as consignors to the Jute Presses as consignees. This is the only undisputed and ascertained fact which emerges from the enquiry into the contention raised by the assessees. The question of law that has been
referred to us in these circumstances is as follows: Whether in the aforesaid circumstances the turnover from the quantities of jute despatched by the petitioner as consignors to the Jute Presses as consignees is taxable under the Assam Sales Tax Act, 1947?
4. While expressing his opinion the Commissioner of Taxes has stated as follows :
'The despatches may or may not have been made against prior contracts and there may or may not have been any subsequent diversion. The fact of the existence of a contract, if any, is not ascertainable by the Department without active co-operation of the Party. The indisputable fact is there that the jute was despatched to the jute mills, as consignees, by the petitioner as consignor. Along with the despatches, there was transfer of property in goods from the consignor to the consignee and at least for deferred payment. Subsequent developments, if any, are immaterial. At the point of despatch and within the State (of Assam), there was at least a transfer of property and a sale under Section 2(12) even without the Explanation thereunder.'
5. Section 2(12) Assam Sales Tax Act 1947 defines 'sale' as follows :
'sale with all its grammatical variations and cognate expressions means any transfer of property in goods by any person for cash or deferred payment or other valuable consideration, and includes a transfer of property in goods involved in the execution of a contract .........'
This part of the definition is all with which we are concerned. Sale according to this definition means a transfer of property in goods, for cash or deferred payment or for other valuable consideration. In this case the assessee's contention was that they could not despatch jute to their agents or to any other persons on account of restrictions on booking. They could only send it to Jute Presses, which were excepted from the prohibition. Evidently they could not act as agents for consignors. It could be despatched only to them as consignees. The Jute Presses thus could receive jute as transferees. The assessees urged that they were merely benami consignees and, therefore, benami transferees. They had lent their names in order to enable the consignors to despatch jute to their agents in violation of the restrictions imposed on booking to agents of the consignors. The taxing authorities have found that there was no proof that there were any restrictions on booking. They also did not accept the contention that the Jute Presses were benami transferees who had endorsed steamer receipts to the agents of the consignors. The Commissioner in his order on the revision petition observed that a letter from one of the Jute Presses was produced with a view to showing that the Jute Presses were merely benami consignees. This letter was produced after the assessment and was not considered as sufficient proof of the allegations made. If Jute Presses were not ostensible consignees, they would be consignees for consideration. The finding of fact arrived at in these circumstances was that Jute Presses not having been shown to be benami consignees, were consignees for consideration; the payment of which if not made before despatch, must have been deferred.
6. It appears that the assessees did not endeavour to substantiate their allegations at the proper stage. The statement of facts contained in the reference has not been challenged even before us. The only contention raised by the learned counsel for the assessee is that this case is covered by a Division Bench decision of this Court in--'Ramniwas Satyanarayan v. Commr. of Taxes, Assam', A. S. T. Ref. No. 1 of 1951 (Assam).
7. The jurisdiction of this Court under, the Act is purely advisory. The Commissioner of Taxes is the final fact finding authority. It is not open to this Court in its advisory capacity to go behind findings of fact arrived at by him. It is only if this court comes to the conclusion that there was no evidence to justify a particular finding of fact that it may be open to the court to set aside the particular finding. But as stated above the finding embodied in the statement of facts has not been challenged before us on any ground presumably for the reason that adequate evidence in support of the allegations made by the assessee was not produced at the proper stage.
8. The learned Government Advocate does not question the correctness of the decision of this court in--'Ramniwas Satyanarayan v. Commr. of Taxes, Assam', A. S. T. Ref. No. 1 of 1951 (Assam). He has merely sought to distinguish it.
9. According to the finding arrived at by the Commissioner of Taxes the Jute Presses were the real consignees for consideration though its payment may have been deferred. The booking of jute in these circumstances for the Presses could be only in pursuance of a contract of sale under which the seller could send the goods to the buyer. Delivery of jute to the carriers in these circumstances would be prima facie delivery to the buyer. It was delivered to the carrier for purposes of transmission to the buyer without the seller reserving any right of disposal. The despatch involved an unconditional appropriation of the goods to the consignee if any appropriation was necessary. It was open to the seller to reserve his right of disposal over the goods until certain conditions were fulfilled. This apparently was not done. There was no such contention in this case. In the absence of any reservation of the right of disposal over the goods, the property in goods would pass at the time the goods were handed over to the carrier. The transfer of property in goods to the consignees, therefore, in this case took place at the time the goods were delivered to the carrier. The transfer was for consideration as found by the Commissioner of Taxes. The turnover from the jute despatched to the Presses would thus be taxable under the Assam Sales Tax Act. We do not think that this case is covered by the Division Bench decision of this court in--'Ramniwas Satyanarayan v. Commr. of Taxes, Assam', A. S. T. Ref. 1 of 1951 (Assam). In that case there were two sets of consignments. Certain quantity of jute was despatched to the agents of the consignors. In respect of these consignments, it was held that there was no sale in this State within the meaning of Section 2(12) Assam Sales Tax Act, 1947. In this case also the turnover from all jute which was despatched to the agents has already been excluded from assessment. Forty-one consignments of the other set in that case were despatched to persons other than the consignors or their agents. In regard to these consignments there were contracts in pursuance of which the steamer receipts were sent to the
agents of the consignors. They collected 90 per cent of the price before handing over documents to the consignees who paid the balance of the price after necessary inspection of goods on taking delivery. In all those cases there was reservation of the right of disposal and, therefore, it was held that the property in the goods had not passed to the consignees by the mere fact of delivery of the consignments to the carriers. In this case there is no finding from the Commissioner that the right over the disposal of the goods was reserved before despatch. In fact that contention could not have been raised in view of the position taken up by the assessees, their case being that the Presses were benami transferees. In any case there being no such finding the decision of this court in A. S. T. Ret No. 1 of 1951 (Assam) has got no bearing on the case before us. That case is clearly distinguishable.
10. In the result our answer to the question referred to us is that the turnover from the jute despatched to the Presses as consignees is taxable under the Assam Sales Tax Act. We make no order as to costs.
11. I agree.