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M/S NITIN KUMAR & COMPANY BHARWAI KAUSHAMBI versus COMMISSIONER TRADE TAX LUCKNOW

High Court of Judicature at Allahabad

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M/S Nitin Kumar & Company Bharwai Kaushambi v. Commissioner Trade Tax Lucknow - SALES/TRADE TAX REVISION No. 377 of 2001 [2007] RD-AH 4406 (14 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no.22

TRADE TAX REVISION NO.377 of 2001.

M/S Nitin Kumar & Company, Bharwari, Kaushambi.    Applicant

Versus

The Commissioner, Trade Tax, U.P. Lucknow.                      Opp.Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 30th December, 2000 relating to the assessment year, 1993-94.

The applicant was carrying on the business of food grain, oil-seed etc. The books of account have been rejected. The dispute relates to the two transactions, namely, for Rs.5, 46,349.40 paise claimed to have been purchased in a purchasing commission agency on behalf of M/S ITC, Limited, Andhra Pradesh and Rs. 1,84,386/- claimed to have been purchased in a Commission Agency on behalf of M/S Durga Oil Mills, Jalgaon. It was claimed that both the purchases were made in a purchasing commission agency for and on behalf of Ex-UP Principal and after the purchases the same were dispatched outside the State of U.P. at the desired destination. Assessing authority rejected the claim of commission agency in case of M/S ITC, Limited on the ground that the applicant had furnished Form H No. 854505 and in respect of the claim of purchases made on behalf of M/S Durga   Oil Mills, Jalgaon, the assessing authority held that Form C no. 028167 was filed in which bill no.970 dated 29th March, 1994 for Rs. 1,98,000/- is mentioned and the tax has been levied on the purchases. It also appears that the aforesaid two transactions have also been treated as inter-State sales in the assessment framed under the Central Sales Tax Act. Being aggrieved by the order of the assessing authority, applicant filed two appeals before the Deputy Commissioner (Appeals), Trade Tax, Allahabad. Deputy Commissioner (Appeals), Trade Tax, Allahabad vide order dated 30th September, 1999 dismissed both the appeals. Applicant further filed two appeals before the Tribunal. Tribunal by the impugned order dismissed both the appeals. Present revision relates to the levy of tax on the purchases under the U.P. Trade Tax Act. It is not clear whether any revision under the Central Sales Tax Act has been filed or not.

Heard learned counsel for the parties.

Learned counsel for the applicant has referred a copy of the order issued by M/S ITC, Limited which is Annexure-4 of the revision petition and submitted that in pursuance of the said order, the applicant had made purchases in a purchasing commission agency and thereafter dispatched outside the State as directed by M/S ITC, Limited. He submitted that both the purchases and their dispatches were part of the same transaction and, therefore, they were inter-State purchases. He further submitted that in respect of the transaction relating to M/S Durga Oil Mills, Jalgaon purchases were made for and on behalf of Ex-U.P. Principal and merely because Form C was received from the Ex-U.P. party and filed before the assessing authority, they could not be treated as inter-State sales and claim of the applicant that purchases were made for and on behalf of Ex-U.P. Principal cannot be rejected. He further submitted that in any view of the matter, the applicant claimed the aforesaid purchases on behalf of Ex-U.P. Principal in the course of inter-State purchases and was bonafidely contesting the case and even if the levy of tax on the purchases are sustained, the purchase tax so levied cannot be treated as a tax admittedly payable and the interest under section 8 (1) of the Act cannot be demanded. Learned Standing Counsel relied upon the order of the Tribunal.

I do not find any substance in the claim of the applicant that the aforesaid two purchases were made for and on behalf of Ex-U.P. Principal.

Perusal of the order, which is Annexure 4 of the revision petition reveals that the order was for the supply of the goods and it was not for appointing the applicant as purchasing commission agent for making the purchases for its behalf, therefore, the claim of the applicant that it had acted as purchasing commission agent on behalf of M/S ITC Limited cannot be accepted.

The claim of the applicant that it had acted as purchasing commission agent on behalf of M/S Durga Oil Mills, Jalgaon also cannot be accepted. Admittedly, the applicant had filed Form C in which bill no.970 dated 29th March, 1994 for Rs. 1,98,000/- is mentioned. The copy of the bill has not been filed along with the revision petition. There is nothing on record to show that the purchases were made as a purchasing commission agent. Raising of bill for sale and receipt of the Form C prima facie shows that it was a case of inter-State sales to M/S Durga Oil Mills, Jalgaon. Assessing authority treated such sales as inter-State sales and levied the tax.

Levy of tax has been upheld upto the stage of Tribunal. It appears that no revision has been filed under the Central Sales Tax Act. There is also no evidence to show that the purchases were made in a purchasing commission agency. In this view of the matter, the levy of tax on the purchases is upheld.

So far as question of interest under section 8 (1) of the Act is concerned, Tribunal has confirmed the demand on the ground that the tax has been levied on the disclosed turnover. It has not adjudicated that whether on facts and circumstances, the applicant has disputed the liability of tax bonafidely. Thus, the dispute relating to the interest under section 8 (1) of the Act is remanded back to the Tribunal to decide the issue afresh.

In the result, revision is allowed in part. The order of the Tribunal so far as it relates to the levy of tax is concerned is upheld and the matter is remanded back to the Tribunal to decide the issue relating to the interest under section 8 (1) of the Act afresh.

Dated.14.03.2007.

VS.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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