TaxTMI 
TaxTMI 
2008 (4) TMI 689
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....ent was charged. Whereas with regard to the Central sales made after October 1, 1988 till March 31, 1989 without form "C" tax at 13.2 per cent was charged which included the additional tax also. This distinction in the application of different rate of tax for different periods is not explained. As the dealer had already deposited Rs 6,76,382.60, demand for the balance amount of Rs. 16,250.20 was raised along with the interest at two per cent per month for the delayed period. Subsequently notice was given to the dealer under section 22 of the Act on the ground that on the aforementioned inter-State sales, without form "C" the dealer was liable to pay additional tax also at 1.2 per cent in view of section 8(2A) of the Central Sales Tax Act, 1956 read with section 3E of the Act and as this amount of the additional tax has been left out why it should not be recovered. Basis for issuing this notice was the judgment of the apex court dated January 16, 1992 in the case of Deputy Commissioner of Sales Tax v. Aysha Hosiery Factory (P) Ltd. reported in [1992] 85 STC 106 (SC); [1992] UPTC 454. The dealer filed his objections to the show-cause notice under section 22 of the Act, which did not ....
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....orities and therefore, the assessing authority has rightly not applied the additional tax while calculating the liability under the Central Act. It has further been submitted by Sri Saxena that the apex court in the case of Aysha Hosiery [1992] 85 STC 106 (SC); [1992] UPTC 454 which related to the State of Kerala, the imposition of additional tax under the Kerala Additional Sales Tax Act was challenged wherein it was held that the additional tax would be applicable to the transactions covered by the Central Act. On the basis of the said decision, the circular dated August 26, 1982 issued by the Commissioner of Sales Tax was rescinded by means of another circular dated October 29, 1992. It was provided that the additional tax would be applicable to the transactions under the Central Act. According to Sri Saxena this was not a case for rectification under section 22 of the Act. Under section 22 of the Act scope is very limited and the authority could rectify any mistake in any order passed by it under this Act apparent on the record. He has further submitted that section 3E of the Act did not prescribe any rate of tax on goods but it related to imposition of the additional tax at 1....
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....dustries [2007] 209 ELT 5 (SC) wherein the apex court in paragraph 5 has referred to and approved the principles laid down by the apex court in the case of Commissioner of Customs, Calcutta v. Indian Oil Corpn. Ltd. [2004] 3 SCC 488 which read as follows: "1. Although a circular is not binding on a court or an assessee, it is not open to the Revenue to raise a contention that is contrary to a binding circular by the Board. When a circular remains in operation, the Revenue is bound by it and cannot be allowed to plead that it is not valid nor that it is contrary to the terms of the statute. 2.. Despite the decision of this court, the Department cannot be permitted to take a stand contrary to the instructions issued by the Board. 3.. A show-cause notice and demand contrary to the existing circulars of the Board are ab initio bad. 4. It is not open to the Revenue to advance an argument or file an appeal contrary to the circulars." The Commissioner is entrusted under rule 4 of the U.P. Trade Tax Rules, 1948 with the powers to issue instructions generally regulating the procedure to be followed in carrying out the provisions of the Act or the Rules. By virtue of the powers c....
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....ation of the same circular dated August 26, 1982, in the case of U.P. Ceramics and Potteries Limited [1992] UPTC 1333 has held in so many words that the said circulars would be binding on the authorities during its period of currency. However it is only after its withdrawal that the additional tax could be levied under the Central Act from the date of such withdrawal only. Paragraph 7 of the said judgment reads as follows: "However, in my opinion this revision is liable to succeed on another point. It appears that a circular was issued by the Additional Sales Tax Commissioner, U.P., dated August 26, 1982 in which it was mentioned that while calculating the Central sales tax the additional sales tax will not be taken into consideration. In my opinion, since the Department itself had decided that the additional sales tax under the U.P. Sales Tax Act will not be taken into consideration for calculating the Central sales tax, it is not open to the Department, as long as this circular is in force, to urge that additional sales tax has also to be added while calculating the Central sales tax. The Department having taken a particular stand through the aforesaid circular cannot be permitt....