S.C. Agrawal, J.
1. This is a revision under Section 15 of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Amendment Act') wherein the petitioner, namely, the Commercial Taxes Officer (Revisions), Ajmer, is seeking to challenge the correctness of the orders passed by the Board of Revenue for Rajasthan (hereinafter referred to as 'the Board of Revenue').
2. This revision relates to the assessment year 1968-69 and the period relevant to the said assessment year is from 1st December, 1967 to 21st October, 1968. M/s. Hari Narain Gyarsi Lal, non-petitioner (hereinafter referred to as 'the assessee') is a partnership firm dealing in pure ghee. On 4th November, 1968, the Commercial Taxes Officer, (Survey & Investigation) (hereinafter referred to as 'the assessing authority') visited the premises of the assessee and during the course of inspection he found a book containing khatas for the sales of pure ghee on 'adat' and loose papers connected with sales of such ghee, during the period from 10th September, 1968 to 2nd November, 1968 and he also found that the entries contained in those papers' were not found recorded in the regular books of accounts. The assessing authority recorded the statement of Shri Gyarsi Lal, a partner of the assessee-firm on the spot and seized the book of accounts under Section 22(3) of 'the Act. Thereafter, the assessing authority carried out further proceedings and in those proceedings the assessing authority found that sales to the extent of Rs. 2,84,756 had been evaded from tax. The said amount included the turnover of Rs. 70,000 for sale of pure ghee during the months of September and October, 1968; sale of 988 tins of ghee valued at Rs. 1,84,756 to Ramdas and sales of Rs. 30,000 which were not recorded in the regular books for the last six months. The assessing authority passed an assessment order dated 22nd March, 1969 wherein he increased the sale turnover of the assessee by Rs. 2,84,756 and imposed sales tax on the additional amount of turnover and also imposed a penalty of Rs. 16,000 under Section 16(1)(i) and a penalty of Rs. 250 under Section 16(1)(n) of the Act. The assessee filed an appeal which was disposed of by the Deputy Commissioner [Appeals (1)], Jaipur, by his order dated 21st March, 1972. The Deputy Commissioner partly allowed the said appeal of the assessee and while upholding the order of the assessing authority regarding enhancement of the turnover by Rs. 2,84,756 and the penalty of Rs. 16,000 under Section 16(1)(i), he set aside the penalty of Rs. 250 under Section 16(1)(n) and also directed that the rate of tax on turnover of ghee in respect of two S. T. 17 forms produced at a later stage be reconsidered. The assessee thereupon filed a revision before the Board of Revenue. The said revision was allowed by the Chairman, Board of Revenue, by order dated 22nd November, 1974. In the revision proceeding before the Board of Revenue, the statement of Ramdas was recorded. The Chairman of the Board of Revenue held that the onus to prove the sales which escaped tax lay on the department and that the sale of 988 tins of ghee should have been proved by the assessing authority and that the assessment order shows that this onus has not been discharged properly and that the sales have been held on mere surmises and conjectures. In this connection the learned Chairman of the Board of Revenue has also observed that the statement of Ramdas recorded by him clearly indicated that no purchase had been made by him from the assessee and he had denied that the entries related to any sale to him and the said witness was cross-examined by the learned counsel for the petitioner. The learned Chairman of the Board of Revenue has also found that no cogent reasons have been given to disprove the version of the assessee that he was a commission agent of so many principals and that the incidence of taxation was wrongly imposed on transactions which were unjustifiably held to be exceeding the taxable turnover provided in Section 3 of the Act and that no reason was given by the assessing authority to disbelieve the affidavit given by the assessee. The petitioner filed a special appeal against the aforesaid decision of the Chairman of the Board of Revenue and the said appeal was dismissed by a Division Bench of the Board of Revenue by order dated 21st February, 1979. Thereafter the petitioner filed an application under Section 16 of the Act for referring the following four questions for the opinion of this Court :
(i) Whether, on the facts and circumstances of the case, the turnover of Rs. 70,000 fixed on the basis of loose papers found in the business place of the dealer was not evaded sale and it related to the individual transaction of a partner of the firm and not of the firm M/s. Hari Narain Gyarsi Lal ?
(ii) Whether, on the facts and circumstances of the case, the evaded turnover of Rs. 1,84,766 on account of sale of 988 tins of related to empty tins made by Ramdas, notwithstanding to deposition by him before the two authorities below and also non-production of khata related to the transaction of Shri Ramdas as well as no entry thereof in exhibit I ?
(iii) Whether, on the facts and circumstances of the case, the evaded turnover of Rs. 30,000 based on consideration of previous sales in khatas carried out during the assessment period but not submitted before the assessing authority set aside notwithstanding no mention thereof in the order of Board ?
(iv) Whether, on the facts and circumstances of the case, the penalty of Rs. 16,000 under Section 16(1)(i) was rightly set aside ?
3. By order dated 11th January, 1980, the Board of Revenue referred the following question for the opinion of this Court :
Whether, on the facts and circumstances of the case, the turnover of Rs. 70,000 fixed on the basis of loose papers found in the business place of the dealer was not evaded sale and whether a partner of the firm can carry out separate business from the same premises, as commission agent without any valid licence for the same ?
4. As regards the other questions for which reference was sought by the petitioner the Board of Revenue has observed that findings of fact had been recorded by the Board of Revenue in respect of the alleged sale of 988 tins of ghee and the sales of Rs. 30,000 and they do not require any further discussion. The petitioner did not take any steps to move this Court under Section 16(2) of the Act, as it stood at that time, for seeking a reference of the questions for which reference was refused by the Board of Revenue. The reference made by the Board of Revenue was registered in this Court as D. B. Sales Tax Reference No. 80 of 1980.
5. During the pendency of the aforesaid reference before this Court the Amendment Act was enacted whereby Section 15 of the Act was substituted and instead of reference of this Court from the Board of Revenue provision has been made for revision to this Court, in .oases involving a question of law. Under Section 13 of the Amendment Act transitory provisions have been made and in Sub-section (11) of Section 13 it is provided that every reference made by the Board of Revenue before the date- of the coming into the force of the Amendment Act and pending before the High Court on the said date, shall be deemed to be an application for revision under Section 15 of the Act as substituted by the Amendment Act and shall be disposed of accordingly. In view of the aforesaid provision contained in Sub-section (11) of Section 13 of the Amendment Act, the reference has been registered as a revision and has been numbered in S. T. Revision No. 85 of 1987 (New).
6. I have heard Shri G. S. Bapna, the learned counsel for the petitioner, and Shri V.K. Singhal, the learned counsel for the assessee.
7. At the outset, it may be stated that Shri Bapna has sought leave to agitate questions which have not been referred by the Board of Revenue, and has moved an application wherein he has prayed that all the four questions which were raised by the petitioner in the application for reference before the Board of Revenue may be allowed to be agitated by the petitioner in this revision. In this connection Shri Bapna has submitted that by virtue of Section 15 as amended, and the transitory provisions contained in Section 13(11) of the Amendment Act, the reference has to be treated as a revision and must be decided accordingly and that under Section 16(3), as substituted by the Amendment Act, this Court is competent to formulate the question of law or to allow any other question to be raised. Shri Singhal, on the other hand, has urged that it is not permissible for the petitioner to agitate questions in respect of which reference was refused by the Board of Revenue by order dated 11th January, 1980 because a remedy was available to the petitioner under Section 15(2) of the Act, as it stood at the relevant time, to move this Court to seek a reference in respect of questions which the Board of Revenue had refused to refer and since the petitioner failed to take any steps in this regard, the order of the Board of Revenue dated 11th January, 1980 refusing to refer the other three questions, has become final and the same cannot be reopened and the questions for which reference was refused, cannot be permitted to be agitated by the petitioner at this stage.
8. I find considerable force in the aforesaid submission of Shri Singhal. In my view Shri Bapna cannot be granted the permission to agitate the other three questions for which reference has been refused by the Board of Revenue by order dated 11th January, 1980, cannot be accepted. Under Section 15 of the Act, as it stood prior to the Amendment Act, a party feeling aggrieved by an order passed by the Board of Revenue could move an application before the Board of Revenue for referring to the High Court any question of law arising out of order of the Board of Revenue. In Sub-section (1) of Section 15 a period of 120 days from the date of communication in writing of such order, was prescribed for moving such an application before the Board of Revenue and the Board of Revenue was required to draw the statement of case and refer the question to this Court within 180 days of the receipt of the application. In Sub-section (2) of Section 15 it was provided that if for reasons to be recorded in writing by the Board of Revenue refuses to make such reference, the applicant may, within 90 days of the communication in writing of such refusal, either (a) withdraw its application or (b) apply to the High Court against such refusal. In Sub-section (3) of Section 15 it was provided that if upon the receipt of the application under Clause (b) of Sub-section (2) of Section 15, the High Court is not satisfied that such refusal was justified, it may require the Board of Revenue to state a case and refer it to the High Court and on receipt of such requisition, the Board of Revenue shall state and refer the case accordingly.
9. In the present case, the petitioner had moved an application before the Board of Revenue under Sub-section (1) of Section 16 of the Act, as it stood before the Amendment Act, wherein the petitioner had prayed that four questions of law mentioned in that application may be referred for the opinion of this Court. The said application was disposed of by the Board of Revenue by order dated 11th January, 1980, whereby the Board of Revenue decided to refer only one question relating to turnover, of Rs. 70,000 for the opinion of this Court and it did not refer the other three questions mentioned in that application for the opinion of this Court. As regards the questions relating to turnover of Rs. 1,84,756 and Rs. 30,000 sought to be urged by Shri Bapna it may be stated that the Board of Revenue expressed the view that findings that were recorded by the Board of Revenue in respect of the said matters were findings of fact and were conclusive and they do not require any further discussion. If the petitioner felt aggrieved by the aforesaid order of the Board of Revenue dated 11th January, 1980 in so far as the Board of Revenue refused to refer the other three questions mentioned in the reference application for the opinion of this Court, the petitioner could have moved an application before this Court in Sub-section (2) of Section 15 of the Act seeking a direction from this Court for referring the said questions mentioned in the reference application which the Board of Revenue had refused to refer to this Court. The petitioner, however, did not take any such step within the time prescribed for moving such application and as a result the order of the Board of Revenue dated 11th January, 1980 refusing to refer the said three questions mentioned in the reference application filed by the petitioner has become final. The amended provisions of Section 15 introduced by the Amendment Act have been made applicable to the references pending before this Court by the transitory provisions contained in Sub-section (11) of Section 13 of the Amendment Act. The said transitory provisions contained in Section 13(11) of the Amendment Act are procedural in nature. There is nothing in the language used to in the Amendment Act to suggest that the legislature intended to affect the substantive rights that had been acquired by a party prior to the coming into force of the Amendment Act. The provisions of the Amendment Act cannot, therefore be construed to have the effect of adversely affecting the rights Vesting in the assessee under the order of Board of Revenue dated 11th January, 1980 which had attained finality on the date of coming into force of the Amendment Act. The provisions of Sub-section (3) of Section 16 of the Act, as substituted by the Amendment Act, and Sub-section (11) of Section 13 of the Amendment Act must, in my view, be construed to mean that in cases where a reference has been made by the Board of Revenue before the date of the coming into force of the Amendment Act and the said reference is pending before this Court on the date of the coming into the force of the Amendment Act, the said reference should be treated as a revision under Section 16 of the Act, as substituted by the Amendment Act, and the question of law referred by the Board of Revenue to this Court should be decided by this Court while exercising its jurisdiction under Section 15 of the Act, as substituted by the Amendment Act. In that view of the matter, I am unable to accept the request of Shri Bapna for permission to agitate the other three questions which were mentioned in the reference application submitted by the petitioner before the Board of Revenue and in respect of which reference was refused by the Board of Revenue in its order dated 11th January, 1980.
10. Even if it be assumed that it is permissible for the petitioner to agitate the questions in respect of which reference has been refused by the Board of Revenue I am of the opinion that questions Nos. (ii) and (iii) mentioned in the reference application do not involve any question of law and they cannot be agitated in these revision proceedings. In this connection, it may be stated that question No. (ii) mentioned in the reference application relates to the turnover of Rs. 1,84,756 on account of sale of 988 tins of ghee to one Shri Ramdas. The Chairman of the Board of Revenue has held that the onus to prove the sales which escaped tax lay on the department and that in the present case the sale of ghee which is alleged to have been contained in 988 tins should have been proved by the assessing authority and that the assessment order clearly shows that this onus has not been discharged properly. The Chairman of the Board of Revenue has observed that he had recorded the statement of Shri Ramdas, and Ramdas was cross-examined by the counsel for the petitioner. After considering the statement of Shri Ramdas, the Chairman of the Board of Revenue has recorded the finding that the said statement clearly indicates that no purchases were made by Ramdas from the assessee and he has denied that the entries relates to any sale to him. This would show that a finding of fact has been recorded by the Chairman of the Board of Revenue on the basis of evidence on record which finding has been affirmed by the Division Bench of the Board of Revenue in special appeal. There is no legal infirmity in the said finding.
11. Similarly with regard to question No. (iii) relating to the evaded turnover of Rs. 30,000 based on consideration of previous sales in khatas carried out during the assessment period, the Chairman of the Board of Revenue has held that the sales have been held on mere surmises and conjectures, and the essential element of sale had not been established by the assessing authority. This is also a finding of fact and no legal infirmity has been shown in the said finding. For the reasons aforesaid I find no ground for permitting the learned counsel for the petitioner to agitate these questions in these revision proceedings.
12. Coming to the question which has been referred by the Board of Revenue relating to the turnover of Rs. 70,000 it may be observed that before the assessing authority it was submitted on behalf of the assessee that the said sales of Rs. 70,000 were not sales by the assessee-firm but were transactions entered into by the individual partner as an agent for which brokerage had been charged and that the goods which were sold were of different principals who are residents of Rajasthan and are mainly agriculturists and that the said goods were sold by them to the different parties without giving possession to the assessee. The said explanation was not accepted by the assessing authority on the view that as per Section 9-B of the Act the principal of the commission agent is liable for the tax and since the assessee had not obtained the licence for the exemption of the commission agent as such his claim for sale on behalf of the principals could not be accepted. The same view was taken by the Deputy Commissioner (Appeals) who held that for working as commission agent it was necessary for the assessee to obtain a licence. The learned Chairman of the Board of Revenue, in his order dated 22nd November, 1974, has referred to the reply submitted by the petitioner under Rule 34A of the Rules wherein, it has been admitted that the ghee was of agriculturists, and the learned Chairman of the Board of Revenue has observed that it was the admitted position that the ghee was of agriculturists. In view of the aforesaid admitted position, it must be held that the sales of ghee covered by the aforesaid turnover of Rs. 70,000 related to the transaction of sale of ghee belonging to various agriculturists and that the assessee was only acting as commission agent for those principals. In Section 9-B of the Act it is provided that where a commission agent sells any taxable goods on behalf of his principal, such commission agent and his principal shall both be jointly and severally liable to pay the tax on such sales. The liability that has been imposed on a commission agent under Section 9-B of the Act is co-extensive with that on the principal, and the commission agent is only liable to the extent the principal can be held liable for the payment of tax under the Act. If the principal is exempt from payment of tax then no liability can be imposed on the commission agent under Section 9-B of the Act. In the present case the admitted position is that the turnover of Rs. 70,000 related to the sale of ghee belonging to the agriculturists and the assessee sold the same as a commission agent. Since the said turnover of Rs. 70,000 related to various transactions, the liability of the assessee for tax under Section 9-B could have arised only if the principal was assessable to tax under the Act and the turnover of each or any of the principal exceeded the turnover of Rs. 30,000 and then only the liability of the assessee in respect of excess part of the turnover could have arisen under Section 9-B of the Act. There was no material before the assessing authority on the basis of which it could be said that the turnover of the various principals whose ghee was sold by the assessee as commission agent exceeded Rs. 30,000. In these circumstances no liability for tax under Section 9-B of the Act could be imposed on the assessee. I am, therefore, of the opinion that the order passed by the Chairman of the Board of Revenue, which has been affirmed by the Division Bench of the Board of Revenue in special appeal, does not suffer from any legal infirmity.
13. In the result the revision fails and is dismissed, but in the circumstances, without any order as to costs.