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THE COMMISSIONER TRADE TAX UP LKO. versus S/S STAR PAPER MILL LTD.

High Court of Judicature at Allahabad

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The Commissioner Trade Tax Up Lko. v. S/S Star Paper Mill Ltd. - SALES/TRADE TAX REVISION No. 1249 of 1995 [2004] RD-AH 1062 (6 October 2004)

 

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.55

TRADE TAX REVISION NO.1249 OF 1995

The Commissioner, Trade Tax, U.P., Lucknow. ....Applicant

Versus

S/S Star Paper Mill Limited, Saharanpur. ....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 14.07.1995 relating to the assessment year 1989-90 under the U.P. Trade Tax Act.

Dealer/opposite party (hereinafter referred to as "Dealer") was involved in carrying on the business of manufacture and sale of paper. For the packing of the paper hessian cloth were used, for which according to the dealer no price was charged and after its use, it became non-useable. During the year under consideration, dealer had purchased and sold saw mill waste. In the year under consideration, applicant had also sold one old non-functional generator, which was purchased  in the year 1958 and admitted the tax liability @ 8.8%. Assessing authority levied the tax on the turn over of hessian cloth, which was used in the packing of the paper. Assessing authority also levied tax on the purchases of saw mill waste under section 3-AAAA of the Act treating it as "waste product". Assessing authority also levied the tax on the old generator @ 13.2% treated it as a electrical goods. First appeal filed by the dealer in respect of the aforesaid three items was dismissed. Dealer filed second appeal before the Tribunal, which was allowed and the claim of the dealer in respect of the aforesaid three items have been accepted.

Heard learned counsel for the parties.

I have perused the order of the Tribunal and the authorities below.

Tribunal has recorded the finding that the dealer had sold the paper and price of the paper was only charged and no price for hessian cloth was charged. It has been further observed that  hessian cloth after its use, became un-useable and there was no express or implied contract between the dealer and the purchaser for hessian cloth. Finding of the Tribunal is finding of fact and needs no interference.

So far as levy of tax under section 3-AAAA of the Act on the purchase of saw mil waste is concerned, Tribunal has recorded the finding that the dealer had purchased saw mill waste from the registered dealer without Form-III-A, therefore, in the hand of the registered dealer, it was sales to consumers and the registered dealer would be subjected to tax under section 3-AAAA of the Act and, therefore, there would not be any liability of tax under section 3-AAAA of the Act.

Section 3-AAAA of the Act reads as follows:

"3-AAAA. Liability to tax on purchase of goods in certain circumstances --- Subject to the provisions of Section 3, every dealer who purchases any goods liable to tax at the point of sale to consumer--

(a) from any registered dealer in circumstances in which no tax is payable by such registered dealer, shall be liable to pay tax on the purchase price of such goods at the same time at which but for such circumstances, tax would have been payable on the sale of such goods;

(b) from any person other than a registered dealer whether or not tax is payable by such person, shall be liable to pay tax on the purchase price of such goods at the time rate at which tax is payable on the sale of such goods;"

Provided that no tax shall be leviable on the purchase price of such goods in the circumstances mentioned in clauses (a) and (b), if---

(i) such goods purchased from a registered dealer have already been subjected to tax or may be subjected to tax under Section 3-AAA;

(b) tax has already been paid in respect of such gods purchased from any person other than a registered dealer;

(iii) the purchasing dealer resells such goods within the State or in the course of inter-State trade or commerce or exports out of the territory of India, in the same form and condition in which he had purchased them;

(iv) such goods are liable to be exempted under Section 4-A of the Act.

Explanation - For the purpose of this section and of Section 3-AAA the sale of ---

(i) ginned cotton after ginning raw cotton purchased as aforesaid, or

(ii) dressed hides and skins or tanned leather after dressing or tanning raw hides and skins purchased as aforesaid, or

(iii) rice during the period commencing on September 2, 1976 and ending with April 30, 1977 after bulling paddy purchased as aforesaid."

Proviso (i) of section 3-AAAA of the Act says that no tax shall be leviable on the purchase price of such goods purchased from a registered dealer have already been subjected to tax or may be subjected to tax under section 3-AAAA of the Act. In the present case, dealer had made purchases without issuing Form-III-A and, therefore, in the hand of the seller, it was sales to consumers and, therefore, registered dealer was liable to tax under section 3-AAAA of the Act. Thus, present case is covered under Proviso (i) of section 3-AAAA of the Act within the ambit of "May be subjected to tax under section 3-AAAA of the Act".

So far as sale of generator is concerned, Tribunal has held that generator was purchased in the year 1958 and was sold in the year under consideration, committee report shows that it was not in running condition and, therefore, generator has been held covered under the entry of "old discarded, unserviceable or obsolete machinery stores or vehicles including waste product" and taxed @ 8.8%. Finding of the Tribunal is finding of fact and needs no interference.

Learned Standing Counsel is not able to assail the finding recorded by the Tribunal and is not able to point out any defect in the order of the Tribunal in respect of the aforesaid three points.

In the result, revision fails and is accordingly, dismissed.

Dt.06.10.2004

R./


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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