TaxTMI 
TaxTMI 
1982 (1) TMI 181
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....19th October, 1972, the assessee effected sales of bars and angles. In the bills issued at the time of effecting those sales, no amount was separately mentioned as having been recovered as sales tax, nor was it mentioned in the bills that the sale price was inclusive of sales tax. In the books of account maintained by the assessee, however, entries were made whereunder a specific amount was bifurcated from month to month out of the amount recovered by way of sale price and it was separately shown as the amount of sales tax. At the time of furnishing the quarterly returns, the amount of sales tax worked out accordingly was paid along with the returns. In the assessment orders for the relevant periods, the Sales Tax Officer held that the sale....
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.... was that the assessee had not recovered any amount by way of sales tax and that as such it had not contravened the provisions of section 56 of the Act so as to attract the penal provisions contained in section 46 of the Act. The Tribunal, while dealing with this contention, took note of the fact that the assessee had not recovered sales tax separately from the buyers as was evident from the bills issued to them by the assessee. However, in its books of account, the assessee had separately shown from month to month a portion of the amount collected as sale price as having been recovered on account of sales tax and that the amount so shown was ultimately paid up along with the quarterly returns. Having noted this fact the Tribunal proceed....
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....sider a further question, namely, whether in view of the decision of the Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra reported in [1976] 37 STC 319 (SC), the sales of goods in the shape of bars and angles effected by the assessee during the course of the three assessment periods could be subjected to sales tax as they could not be considered *Here italicised. to be resales of the goods purchased, namely, iron and steel. The Tribunal considered this inquiry necessary because in Pyare Lal's case [1976] 37 STC 319 (SC), it was held that each sub-item in entry No. (iv) in section 14 of the Central Sales Tax Act, 1956, is a separate taxable commodity for the purpose of sales tax and that each of them forms a separate species for....
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....ave held that the appellant had not recovered any amount by way of tax and so the order of penalty would be bad in law only when the sales made were not liable to tax. Thus the legality of the order of penalty would also depend upon whether the sales made by the appellant were liable to tax or not.....So, the question of penalty and the question of levy of tax on the sales are inter-dependent and hence, we feel that the question of levy of tax on the sales made by the appellant requires to be decided in the light of the aforesaid decision of the Supreme Court ......... Therefore, in the interest of justice, all these matters should be remanded to the Sales Tax Officer for considering the point whether the tax was leviable on the sales ma....
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....s justified in not ordering the refund of the amounts of Rs. 48,386, Rs. 23,689, and Rs. 18,510 to the applicant which had been recovered as penalties from it under section 46(1)(ii) of the Gujarat Sales Tax Act, 1969, in respect of the three periods in question? Section 56, sub-sections (2) and (3), of the Act which are relevant for the present purposes read as under: "56. (2) No person selling any goods shall collect from the purchaser any amount by way of tax unless such person is a registered dealer and is liable to pay the tax in respect of such sale. (3) Subject to sub-sections (1) and (2), no dealer shall collect any amount by way of tax in exercise of the amount of tax payable by him under the provisions of this Act in resp....
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....s and in the circumstances of the case, came to a definite conclusion that the assessee had not recovered any amount by way of tax from the persons to whom it sold the goods in question and that the assessee had recovered only the sale price and that such sale price, even assuming that it contains the tax element, could not be taken as comprehending collection of an amount by way of tax. In terms, the Tribunal found that no amount was recovered by way of tax under section 56 and that, therefore, the prohibition enacted by section 56 was not breached and that the penalty under section 46(1)(ii) was not leviable and that the assessee was entitled to succeed in the penalty proceedings. In our opinion, the Tribunal, in view of these clear and u....