TaxTMI 
TaxTMI 
1988 (8) TMI 367
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....JI, J.-Special leave granted. The appeal is disposed of by the judgment herein. The appeal relates to the assessment year 1976-77, period being April 1, 1976 to January 3, 1977 under the U.P. Sales Tax Act, 1948 (hereinafter called "the Act"). The dealer runs a roller flour mill under the name and style of M/s. Mool Chand Shyam Lal Roller Flour Mills, Agra, in which atta, maida, suji, bran and refraction are manufactured. For the manufacture of atta, maida and suji the wheat is supplied by the Food Corporation of India and the Regional Food Controller under the U.P. Roller Flour Mills (Regulation of Use of Wheat) Order. The sale price of the said wheat products, i.e., atta, maida, suji, has been fixed by the State Government from time to....
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....unt in the account books of the dealer. It is further the case of the Revenue that the amount of wheat sales tax and wheat purchase tax, which the dealer paid for the purposes of purchase of wheat, was collected by the dealer as part of the sale price of the wheat products. For the assessment year 1976-77 the assessment order was passed on February 22, 1979, under rule 41(7) of the U.P. Sales Tax Rules read with section 18(3) of the Act for the period from April 1, 1976 to January 3, 1977 by which the assessing authority while passing the assessment order has accepted the contention of the dealer that the amount of the wheat purchase tax, wheat sales tax and octroi charged separately by the dealer in the cash memo of sale of atta, maida ....
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.... Commissioner (Appeals). The Deputy Commissioner (Appeals) dismissed the appeal and confirmed the order of imposition of penalty. Against the said order of the Deputy Commissioner (Appeals) the dealer filed a second appeal before the Tribunal. The Tribunal also upheld the order of the lower authorities and dismissed the appeal. Against the judgment and order passed by the Tribunal, the dealer moved the High Court by way of a revision. The High Court allowed the revision. The High Court held that on the facts found, it should be examined if the excess realisation was of sales or purchase tax thus incurring penal liability under sub-clause (qq) of sub-section (1) of section 15-A or it was excess realisation of price over and above that the....
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....y the assessee from customers should not be of only sales or purchases but it should be of the tax legally Payable. If the purchaser realises more money that by itself will not attract the penal provisions. In the instant case, the High Court noted that it has been found that the dealer charged sales tax at the rate of Rs. 5 per quintal. There is no finding that it was in excess of tax leviable or legally payable under the Act. The excess thus charged was in contravention of the provisions of the notification. But that alone was not sufficient for initiation or levy of penalty under sub-clause (qq) of section 15-A(1) of the Act. It has to be realised as sales or purchase tax and the tax so charged must have been in excess of tax payable. Th....