Judgment:
K.S. Hegde, J.
1. This is an appeal by certificate. It has a long history. The assessment with which we are concerned relates to the assessment year 1943-44. This case along with other cases appears to have come in this Court earlier and the matter was remanded to the High Court for disposal in accordance with the directions given by this Court. Thereafter, the High Court called for a supplementary statement from the Tribunal. The Tribunal, after setting out the material facts, has referred the following question to the High Court:
Whether the Tribunal was right in its finding that the assessee would not be liable to tax in respect of the goods sold by the assessee on railway receipts in the names of the consignees to the tune of Rs 2,73,488/- effected in the assessment year 1943-44
The High Court has answered that question in the affirmative in favour of the assessee.
2. The assessee is a dealer in cloth in the Bhilwara town in one of the former Indian States. He sold certain bales of cloth to dealers in the then British India. The total price realised in respect of those sales in the assessment year in question was Rs. 2,73,488/-. The question for consideration is whether the profits earned by those sales are taxable in British India.
3. The Tribunal came to the conclusion that the sales were effected at Bhilwara. The title to those properties sold passed to the purchasers at Bhilwara itself. The goods were put on rail at Bhilwara and the railway receipts were taken in the names of the consignees and sent to them by post. It cannot be disputed that the purchasers became the owners of the cloth purchased at Bhilwara itself. This is also the finding of the Tribunal. From this it follows that the sales in question took place outside British India. The only other question that remains to be considered is whether the income was realised in British India. As mentioned earlier, the railway receipts were sent by the assessee to his customers in British India by post. After receiving the railway receipts, the purchasers appear to have paid the sale price to a banker who is the banker of the assessee as well. The question for consideration is whether the banker received the money on behalf of the assessee or on behalf of the purchaser. The Tribunal has come to the conclusion that the banker was the agent of the purchasers and not the agent of the assessee. This again is a finding of fact. The mere fact that the banker was also a banker of the assessee does not go to show that the banker realised amount as agent of the assessee. The Department appears to have failed to establish the fact that the banker functioned as the agent of the assessee. If the banker had functioned as agent of the purchaser, then it cannot be said that any part of the income was realised in British India. Mr. T.A. Ramachandran, learned Counsel for the Revenue, sought to establish from the record that the finding of the Tribunal is factually wrong. That is not a question that we can go into at this stage.
4. In the result, this appeal fails and the same is dismissed with costs.