C. S. P. Singh, J. - The Additional Revising Authority, Varanasi has referred the following questions for our opinion :-
1. Whether on the facts and in the circumstances of the case, the purchases of foodgrains amounting to Rs. 67023-38 made from Regional Food Controller U.P. is exempt under section 3D (1) of the U.P. Sales Tax Act being not the first purchase or not ?
2. Whether on the fact and in the circumstances of the case, it is the petitioner who had under section 3D (1) to furnish the proof of the deposit of tax by the first purchaser for claiming exemption from the liability of tax as a condition precedent ?
3. Whether the finding of the learned Additional Revising Authority in not allowing exemption on the above purchases is justified and legal on the facts and circumstances of the case.
2. The assessee carried on business in foodgrains. A turnover of net purchases to the extent of Rs. 2,23,862/-had been filed in the assessment year 1966-67. The Sales Tax Officer rejected the book version and fixed the turnover at Rs. 4,30,962/- and thereupon an appeal was filed by the assessee before the Assistant Commissioner. In the appeal it was urged that purchases to the extent of Rs. 67,023/38 made by it from the Regional Food Controller, Gorakhpur should be exempted as the assessee was not the first purchaser. This contention was not accepted by the Assistant Commissioner. A revision filed against the order of the Assistant Commissioner was also dismissed. It is necessary at this stage to set out some further facts and the findings of the Assistant Commissioner and the Judge Revisions. The assessee purchased the foodgrains from the Regional Food controller, Gorakhpur and claimed exemption under section 3-D and section 3-D(7) of the Sales Tax Act. Sections 3-D (1) and (7) runs as under :-
'Sec. 3-D Levy of purchase or Sales Tax on certain goods -
(1) Except as provided in sub-section (2) there shall be levied and paid, for each assessment year or part thereof a tax on the turnover, to be determined in such manner as may be prescribed, of first purchases made by a dealer or through a dealer, acting as a purchasing agent in respect of such goods or class of goods, and at such rates, not exceeding two paise per rupee in the case of food grains including cereals and pulses, and five paise per rupee in the case of other goods and with effect from such date, as may from time to time, be notified by the State Government in this behalf.....................................
(7) Unless the dealer proves otherwise to the satisfaction of the assessing authority, every purchases by or through a dealer shall for the purposes of sub-section (1), be presumed to be the first purchase by such dealer and every sale through a dealer shall, for the purposes of sub-section (2), be presumed to be able to a first purchaser.'
The Assistant Commissioner found that the assessee had not produced notification to support their claim of exemption, and neither had it been proved that the Government was a registered dealer and as such the responsibility of payment of tax lay on the Regional Food Controller. He also found that the assessee had failed to prove that the tax had already been paid by them for the foodgrains purchased. Before the Judge Revisions, the assessee urged that the Government was the first purchaser of the foodgrains and not the assessee. A Letter from Sri Bhafwan Din, Sachiv U.P. Shasan Addressed to all Regional Food Controllers in U.P. dated 1-1-1969 was also produced before the Revising Authority. The Judge Revisions has found that the foodgrains purchased by the State Government under the levy scheme was not a purchase made by the Government. The Judge Revisions considering this letter, held that the Government was not the first purchaser and as such the assessee was liable to pay the tax.
3. We have already extracted sections 3-D(1) and 3-D(7) of the Act. The assessee can escape liability for the purchases in case it is shows that the assessee was not the first purchaser or that the tax had already been paid. The question whether the assessee was the first purchaser or not is a question of fact. The authorities have fully considered that question and have come to the conclusion that the assessee had failed to prove that he was not the first purchaser. It has not also been proved that the tax has been paid. The assessee could not as such take any advantage of the exemption under section 3-D(1) and section 3-D(7) of the Act. For the reasons given above, we answer the first question in the negative. The Department is entitled to its costs which we assess at Rs. 200/-. In view of our answer to the first question, it is not necessary to answer the other questions.