TaxTMI 
TaxTMI 
1991 (7) TMI 318
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....s also consigned to places outside the State for sale there. 2.. The Sales Tax Officer while making the assessment for samvat year 2031 (from November 14, 1974 to November 13, 1975) found that, out of the total sales of Rs. 65,22,29,781 branch transfer sales outside the State were to the extent of Rs. 1,63,32,377. The Sales Tax Officer also found that there was breach of declaration given in form 19 to some extent. In form 19, a dealer makes a declaration to the effect that the goods purchased by him shall be used as raw material, processing material or consumable stores in the manufacture of taxable goods and that the taxable goods shall not be sold outside the State. In view of such declaration at the time of purchase, the dealer is not required to pay the purchase tax. The Sales Tax Officer found that there was breach of declaration made in form 19 to certain extent. Therefore he assessed the turnover of such breach to the extent of Rs. 1,02,533 and ordered to levy tax of Rs. 9,077.15. He also imposed penalty of Rs. 100 as provided under section 45(1) of the Act. 3.. The Assistant Commissioner of Sales Tax examined the record of the applicant-dealer by way of audit. He fou....
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....x of Rs. 1,79,209.65. The Assistant Commissioner also held that the Sales Tax Officer had imposed a penalty of Rs. 100 under section 45(1) of the Act on the ground that the contravention of certificates in form 19 was insignificant. But the Assistant Commissioner held that the extent of contravention was about 43 per cent and hence he decided to impose 10 per cent of the total amount of purchase tax payable by the dealer as penalty. Thus he ordered to impose a penalty of Rs. 18,830 instead of Rs. 100 only. 5.. The dealer preferred revision application before the Tribunal. The Tribunal after hearing the parties dismissed the revision application and confirmed the finding arrived at by the learned Assistant Commissioner except as regards the rectification of certain mistakes indicated in para 21 of its judgment. 6.. The dealer submitted an application to the Tribunal for making reference in relation to eight different questions mentioned in the application. However, the Tribunal raised only three questions and referred the same to this Court for its opinion. The questions referred to and our answer are as follows: Question Answer 1. Whether, on the facts and in the....
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....rom the dealer in exercise of his power under section 59 by issuing notice in form 45. Section 59 empowers the Commissioner to require any dealer to produce before him any accounts or documents or to furnish any information relating to stocks of goods, or as regards the sales, purchase and deliveries of goods by the dealer. This section also empowers the Commissioner to call for any other information relating to his business as may be necessary for the purposes of the Act. 9.. It was not contended before the Tribunal that the Assistant Commissioner invoked the powers wrongly, nor it was contended that the Assistant Commissioner while invoking the powers looked into any record which did not form part of the assessment record. All that was contended before the Tribunal was that the Assistant Commissioner has exercised his revisional powers wrongly. Therefore, in the entire judgment and order passed by the Tribunal, there is no reference to the question as to whether the Assistant Commissioner had wrongly invoked his revisional powers. Therefore, the question as to whether the Assistant Commissioner wrongly invoked his revisional powers under section 67 of the Act does not arise....
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....t of the assessment record. Strictly speaking, such a point cannot be permitted to be raised because it would require examination of facts which in exercise of reference jurisdiction this High Court is not required to embark upon. 12.. However, this contention is also against the very case of the dealer pleaded before the Tribunal. It was the case of the dealer that the Assistant Commissioner had no other additional material than the material which was before the Sales Tax Officer. It was on the basis of the same material that both the authorities, i.e., the Sales Tax Officer as well as the Assistant Commissioner of Sales Tax, exercised their powers and passed different orders. It was this circumstance which was pressed in service by the dealer. The dealer contended that the exercise of revisional powers by the Assistant Commissioner was wrong because the Assistant Commissioner did not bring on record any other material except that was produced and examined by the Sales Tax Officer. The contention raised before the Tribunal by the learned counsel for the dealer may be reproduced: "We shall first take up Shri Mody's challenge regarding the wrong exercise of revisional jurisdic....
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....the Sales Tax Officer while passing the order adopted some basis. The Tribunal has found that the order passed by the Sales Tax Officer did not disclose any basis whatsoever for examining and assessing the correctness or otherwise of the production register maintained and relied upon by the dealer. We ourselves have also gone through the order passed by the Sales Tax Officer. We also do not find that any basis whatsoever has been referred to and relied upon by the Sales Tax Officer. 15.. However it was contended that in the case of this very dealer, assessment order was passed by the Sales Tax Officer for the samvat year 2027. That was carried in appeal and the order passed by the Sales Tax Officer was reversed. It was submitted that the basis adopted in appeal was the same as adopted by the Sales Tax Officer. Therefore, it was incumbent upon the Sales Tax Officer to follow the same basis which was approved by the appellate authority. There is nothing on the record to show that the Sales Tax Officer had adopted the pro rata basis while passing the assessment order for the year 2027 and that the same was reversed in appeal. The Tribunal has proceeded on the assumption that it mig....
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....ata basis of user of raw materials purchased against declaration in form 19 and sales of taxable goods outside the State. Before the Tribunal, reliance was placed on two decisions of the Tribunal. In both the cases, the dealers were mixing up the taxable goods-one lot of taxable goods was purchased from registered dealers and another lot of taxable goods was purchased from unregistered dealers. Be it noted that the taxable goods purchased is the same. There is no question of mixing up the taxable goods and manufacturing another article from it. In such cases when taxable goods of two different lots-one purchased from registered dealers and another purchased from unregistered dealers had got mixed up and at the end of the day if it could be shown that stock which remained was equal to the stock which was sold, the dealer could very well say that the stock of the taxable goods which were sold or which remained with him was that of either from amongst the articles purchased from registered dealers or from amongst the articles purchased from unregistered dealers. It was contended on the basis of the aforesaid decision that the Sales Tax Officer had accepted the method adopted by the de....
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....tries reported in [1975] 36 STC 473. That was also a case of a dealer manufacturing hydrogenated vegetable oil. The dealer did not keep separately the stock of raw materials purchased against certificates issued in form 15 (similar to declaration in form 19) of the Bombay Sales Tax Rules, 1959 and the products manufactured out of such stock. Therefore, it was impossible for the dealer to prove that the raw materials purchased against the certificates in form 15 were utilised only in the manufacture of products which were sold in accordance with the declaration contained in such certificates. In such circumstances, the question arose-as to how much of the purchase price of the goods purchased by the dealer should be included in the turnover of purchases and made liable to purchase tax under section 14(1) of the Bombay Sales Tax Act, 1959? The Sales Tax Officer raised a presumption that the raw materials purchased by the dealer against declaration in form 15 were the raw materials utilised in the manufacture of products which were sold in conformity with the declaration contained in the certificates. Therefore, he ordered to levy purchase tax only on 3 per cent of the total purchases....
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....urpose other than that of the Act; (2) that the revisional authority cannot exercise this power which is expressly reserved by the statute to any other authority. 21.. The limitation on the revisional powers indicated by the Supreme Court in the aforesaid decisions have to be understood in the proper context. It is not laid down by the Supreme Court that if reassessment could be done by the Sales Tax Officer in revisional jurisdiction the revising authority cannot make reassessment. If the argument is logically extended, it would mean that if an appellate authority can examine the facts and the law point, then the revising authority cannot examine the facts and the law points involved in the case while exercising its revisional powers. If one were to read such limitation on the revisional powers, it would render the conferment of the revisional powers nugatory. The limitation only means that if an appeal is pending and the appellate authority is exercising its appellate power, in such a case the revisional authority should not interfere in the exercise of the appellate power by the authority. Similarly if the reassessment proceedings are pending and the officer or authority upon....