R. R. Rastogi, J. - The assessee is a dealer in food grains etc. He also acts as a commission agent. In 1963-64, it was found that the assessee had supplied Gur worth Rs. 30,659,81 to two dealers of Gujarat and that Gur he had purchased from Hathras. The assessees case was that Gujarat dealers had come to Agra personally and had placed verbal orders with him and hence purchase orders for that supply were not available. He filed confirmatory letters from the Gujarats parties affirming the aforesaid transactions. The Sales Tax Officer did not believe the case of the assessee on the ground that there were no written orders from the alleged principles. He held the transactions to be inter-state sales and levied sales tax accordingly. On appeal the Assistant Commissioner (J) accepted the contention of the assessee and held that the aforesaid transactions which were duly entered in the account books were purchasing commission agency transactions.
8. Being aggrieved the State came up in revision to the Court of Addl. Judge (Revisions) Sales Tax, Agra and contended that in the absence of any written purchase order, the disputed transactions could not be held to be purchasing commission agency transaction. The revising authority did not accept that contention and was of the opinion that prima facie the claim of the assessee should be accepted because the entries of the disputed transactions appearing in his account books were duly supported by the affidavit given by him and confirmatory certificates of the Gujarat parties. It was also observed that if the Sales Tax Officer had any doubts regarding the genuiness of the entires in the books, he could have examined the account books of the Gujarat parties. He also did not accept the alternative submission of the State representative that it was the duty of the assessee to summon the account books of the Gujarat parties. Anyhow, in the interest of justice, he thought it proper to give an opportunity to the Sales Tax Officer to examine the account books of the two dealers of Gujarat. Hence he allowed the revision by observing :-
'The revision is allowed, the appellate and the assessment order are both set aside. The case is remanded to the S.T.O. concerned for decision afresh according to law. He is directed to afford an opportunity to the assessee to produce the account books of the aforesaid Gujarat dealers to show that the transactions in question related to purchases in the commission agency of the assessee. In case the account books are not available then the assessee may examine the aforesaid Gujarat dealer oath before the S.T.O. of the assessee is not able to find Gujarat dealer at all and he (assessee) files an affidavit in support of this fact, then it will be obligatory upon the S.T.O. to accept the contention of the assessee and he will not be liable to tax.'
On the facts stated above the following question of law has been referred to this Court for opinion at the instance of the Commissioner of Sales Tax, U.P., Lucknow :-
'Whether under the circumstance of the case if the assessee is not able to find Gujarat dealers at all and he files an affidavit in support of this fact, the affidavit shall be a conclusive proof on the point and the assessee will not be liable to tax ?'.
Having heard the parties and gone through the order made by the revising authority we find that the direction given by him that in case the assessee was not able to find the Gujarat dealers and he filed an affidavit in support of that fact, then it would be obligatory on the Sales Tax Officer to accept the contention of the assessee and he would not be liable to tax, is not tenable. In our opinion, no such fatter could have been placed on the powers of the Sales Tax Officer while examining the matter afresh and deciding it according to law. We, therefore, answer the question referred to us as under :-
'The revising authority was not justified in giving a direction to Sales Tax Officer that if the assessee is not able to find Gujarat dealers at all and he files an affidavit in support of this fact, the affidavit shall be conclusive proof on the point and the assessee will not be liable to tax'.
Parties to bear their own costs.