TaxTMI 
TaxTMI 
2014 (2) TMI 205
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....elevision sets with the new television sets and only charging differential amount as per the schme, is a transaction of sale? (iii) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in ignoring the judgment of this Hon'ble Court in the case of Assistant Commercial Taxes Officer v. Ganganagar Bottle Supply Co. 1991 (9) RTJS 213 wherein this Hon'ble Court have held that if the goods have already suffered tax on the initial sale the same are not liable to be taxed again even if they were purchased from casual traders or hawkers? (iv) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in upholding the levy of tax, penalty and interest which was imposed by the assessing authority while passing the assessment order dated 30.3.1999 Annexure/1 by merging the demand which was so created by the Assistant Commercial Taxes Officer, Ward 3, Circle A, Kota while passing the order dated 1.8.1997 under section 65 of the Rajasthan Sales Tax Act and which was so upheld by the Deputy Commissioner (Appeals) vide order dated 10.6.2003?  ....
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.... going on with a scheme under which in lieu of old television sets, the petitioner was providing new "Akai" television sets. During the course of survey, it was noticed by the assessing officer that during the course of said scheme, petitioner exchanged 82 television sets and on these 82 sets, differential amount was charged from the customers. It was also noticed that the petitioner had received an amount of Rs. 7,45000/- by way of credit notes. During the course of hearing, the petitioner was required to provide the purchase vouchers of the 82 old coloured TV sets which the assessee claimed were received in exchange, for providing new TV sets or any other evidence so as to prove that the tax was paid on such old TV sets. However, no evidence was led by the assessee with regard to the said factum. Even, it was noticed by the assessing officer that during the course of survey, neither bill books nor cash book or other record were found nor were produced later on. Accordingly, the assessing officer was of the view that the assessee had not paid purchase tax though it had issued sale vouchers with reference to the 82 TV sets. Accordingly, the assessing officer was of the view that th....
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....d that there was no necessity of proving that old TV sets were tax paid as whenever the original purchaser purchased those TV, it was certainly tax paid. He further explained that if any person purchases TV from market, the dealer charges/levies sales tax and without levy of sale tax no one can sell TV sets or other item whenever sales tax is leviable. He further submitted that sales tax is certainly chargeable on the television sets sold earlier by the other dealer, which were exchanged with the petitioner and once tax has been paid and it is a taxable commodity, which ultimately came to be exchanged, thus, no question of levy of tax arises. He further submitted that all these arguments, which were relevant, have been brushed aside by the lower authorities. 8. In so far as levy of penalty is concerned, he submitted that it is not a case of concealment and the assessing officer has not been able to prove that there was deliberate intention as there was no liability of tax at all. He alternatively submitted that merely because the assessee was unable to prove that the original purchaser had paid tax, penalty in law cannot be imposed. He accordingly submitted that there was no occ....
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....about the levy of purchase tax and further that the tax was correctly levied. 10. In so far as penalty is concerned, it is submitted that the entire transaction was not recorded in the books of accounts nor the books were produced even later on and there was no intention of payment of purchase tax rather the assessee having failed, came out with the unique explanation of exchange/barter just to avoid the purchase tax liability. He further submitted that though the assessee had received credit notes to the extent of Rs. 7,45,000/-, even the credit notes were not disclosed in the books of accounts. He further submitted that it is a clear cut case of imposition of penalty and penalty also deserves to be sustained. 11. Learned counsel for the Revenue in support of his contentions has relied upon the decision in Union of India & ors v. Dharamendra Textiles Processors & ors. reported in (2008 (306) ITR 277 (SC)). 12. I have heard the learned counsel for the parties and have perused the impugned order, so also the judgments relied upon by the parties. 13. In effect two questions emerge for consideration (1) taxability of 82 television sets, which were received by the petitione....
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.... be deemed to take place inside the State- (a) in a case falling under sub-clause (ii), if the goods are in the State at the time of their use, application or incorporation in the execution of a works contract, not with standing that the agreement for the works contract has been wholly or in part entered into outside the State or that the goods have been wholly or in part moved from outside the State; and (b) in a case falling under sub-clause (iv), if the goods are used by the lessee within the State, whether or not for a specified period, notwithstanding that the agreement for the lease has been made outside that State or that the goods have been moved from outside the State or the goods have been delivered to the lessee outside the State. Explanation III. Where there is a single contract of sale or purchase in respect of goods stored or ascertained in the State as well as at places outside the State, the goods stored or ascertained in the State shall be deemed sold separately in or form the State. Explanation IV. ....
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....y, in addition to the tax payable by him under law, a sum equal to double the amount of tax avoided or evaded." 15. On perusal of the above, it makes it clear that in so far as sale is concerned, it mentions that every transfer of property in goods by one person to another for consideration would mean sale so also in view of the extended definition. The transaction, which we are considering in the instant case, in my view, is certainly sale as the assessee was a dealer of Akai TV, has provided new TV sets in lieu of the old TV sets. Therefore, even exchange/barter, in my view, will fall within the definition of sale/purchase as defined under the Act. 16. In so far as Section 11 is concerned, it is clear that had the assessee purchased goods, which were exempted or had the assessee proved that the initial purchaser, who had come with the old TV set for replacement/exchange by a new TV set had proved that it was a tax paid item, then possibly the contention of the assessee may have had some substance. It has been observed that the assessing officer repeatedly required the assessee to provide basis and evidence as to whether the initial purchaser had paid tax, but it is already ....
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....see has charged money from the customers though at a reduced price in lieu of exchange of old TV sets. Thus, it is inapplicable on the facts of the instant case. 18. This Court in the case of Ganganagar Bottle Supply Co. (supra) had an occasion to consider the issue about empty bottles having been purchased by the non-petitioner (assessee) from hawkers and casual traders and it was proved by the assessee that these very bottles came in the rotation i.e. from the assessee to the consumers and from consumers to hawkers and casual traders, who thereafter sold them to M/s Ganganagar Sugar Factory. Therefore, in these facts and circumstances, this Court came to the conclusion that it was proved that tax was paid once, whereas in the present case, the assessee has been unable to prove whether any tax was paid for the reasons given hereinbefore. 19. The other judgments relied upon by the counsel for the petitioner are on different footings and thus distinguishable or not relevant. Therefore, in my view the assessing officer was justified in coming to the conclusion that the sales tax was correctly levied on the credit notes and upheld by the Dy. Commissioner (Appeals) as well as Tax....