TaxTMI 
TaxTMI 
1980 (1) TMI 189
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....rnover of Rs. 18,18,883.08 and also imposed a penalty amounting to Rs. 500 under section 16(1)(c). Penalty to the tune of Rs. 14,694.72 was also imposed under section 16(1)(b). In addition to the penalty imposed under section 16(1)(c) and 16(1)(b), a penalty of Rs. 5,840.32 was imposed under section 16(1)(e). Aggrieved by the assessment order passed by the assessing authority, the assessee filed an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jaipur, who partly allowed the same and set aside the penalty imposed under section 16(1)(b) and also gave relief in respect of taxability of a turnover of Rs. 500 only. In all other respects the appeal was dismissed. Dissatisfied with the decision of the Deputy Commissioner, the assessee filed a revision application before the Board of Revenue for Rajasthan which was dismissed by a single member of the Board on 13th September, 1973. A copy of the order dated 13th September, 1973, has been placed on record and marked exhibit 3. Thereupon the assessee preferred a special appeal under section 14(4A) of the Act before a Division Bench of the Board, and the learned members of the Board by their judgment dated 15th January, ....
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.... in special appeal. We are, however, of the opinion that there. is no bar against dealing with a question of law even if it has not been raised and/or dealt with by the lower authority. In the present case, the Division Bench of the Board has come to the conclusion that the tax was deposited by the assessee in time though the returns were filed slightly late. The Division Bench has further come to the conclusion that the default committed by the assessee was technical particularly keeping in view the fact that there was no validly created Circle 'A' in Jaipur City before 20th October, 1967. It is sufficient to point out that the Board has discretion in the matter and 'if in the facts and circumstances it exercised its discretion in favour of the assessee, no question of law can be said to arise in the matter. We are, therefore, of the opinion that question No. (1) does not arise out of the order of the Board. Before coming to question No. (2) it would be proper to first take up questions Nos. (3) and (4). The question of imposition of penalty under section 16(1)(c) and (e) would depend upon our decision with respect to questions Nos. (3) and (4). We shall, therefore, take up ....
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.... the aggregate amount of the sale prices received or receivable by him in respect of the sale or supply of such goods and of such bardana, container or material: Provided further that when any dealer has purchased any goods without paying any tax on the strength of any declaration furnished by him and the said goods are used by him for any purpose other than the one mentioned in the declaration, the purchase price of goods shall be included in his taxable turnover." It has been argued that in a case like the present the assessee is entitled to deduction on the amount of proceeds of sale of goods which are taxable at a point of sale within the State subsequent to the sale by the dealer only if such sale is covered by a declaration as required under the Act or the Rules and since no declaration was given by the assessee in the present case the amount in question must be included in the taxable turnover. On the other hand, Mr. Ghiya, the learned counsel for the assessee, has drawn our attention to the definition of the term "turnover" contained in section 2(t) of the Act with particular reference to explanation (iv) under it. We may state here that the Division Bench of the Boar....
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..... The Board has, however, found that the assessee had entered into an indivisible contract with the Public Works Department to supply material as well as installing the same and thus the contract was indivisible so that no separate sale could be spelled out from the contract. The question whether a particular transaction is a works contract or involves a sale depends on the facts and circumstances of each case. But the sine qua non for determining such a question is whether there was a sale of any goods by the contractor or there was an indivisible contract in which the assessee was to supply the goods as well as do the work also. In the present case the Board has observed as under: "We find that a cumulative contract was taken from the Public Works Department to supply material and providing and fixing electricity. The contract cannot be bifurcated." Thus the finding of the Board in this respect is that the contract was indivisible. Mr. J.S. Rastogi, the learned counsel for the assessing authority, also urged that there was no material on the record to show that it was an indivisible contract. We may, however, state that it is not the department's case nor any such object....