TaxTMI 
TaxTMI 
2009 (2) TMI 781
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....a claim that Rs. 91,40,660 was sale price of goods exported to Nepal was not accepted on the ground that payments were not received through bank. The assessee preferred a revision against the orders of assessment vide Revision Case Nos. CC (S) 654-655/90-91. The revision applications were disallowed by order dated July 15, 1991. Against that order the assessee preferred a revision before the Commercial Taxes Tribunal, Bihar, Patna which was dismissed by order dated August 26, 1992, mainly on the ground that there was no document as a proof of export issued by any customs authority posted at Indian Customs border. The Bhansar receipts which were loose receipts without bearing any serial number claimed to have been issued by the Customs Department of Nepal were not found reliable. The Tribunal, however, agreed that the stand of the assessee that payment on account of export need not always be through Nepal bank but observed that if such payment had been through a Nepal bank, it could have been a good evidence of export. The assessee preferred a review application before the Tribunal that was disposed of by order dated July 7, 1993 whereby the first prayer to reconsider t....
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....os, which had been duly produced not only before the assessing officer, but even before the Tribunal and in which no defect whatsoever was found? (6) Whether the levy of additional tax in respect of the amount of sales tax assessed is wholly arbitrary and without jurisdiction? (7) Whether surcharge could be levied only on the net tax payable as reduced by the admissible rebate? (8) Whether the levy of surcharge at the rate of ten per cent is legal and valid? The learned counsel for the petitioner (assessee) advanced his arguments first in respect of question Nos. (2) and (3) taken together. It was rightly submitted and it cannot be denied that if the assessee succeeds in establishing that certain sales had taken place in course of export to another country, such sales would not be liable to sales tax under the Act. However, the main issue is whether the rejection of claim of the assessee that he had made export sales to Nepal is in violation of some principles of law or is it on account of mere appreciation of evidence in respect of an issue of fact. The taxing officer as well as the appellate authority and the Tribunal appear to have arrived at a finding of f....
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....ould not be affected even if the contract of sale was illegal. For such conclusion, reliance was placed upon the principle that illegality merely renders a contract unenforceable and not void. Lastly, reliance was placed upon a judgment of the Supreme Court in the case of Commissioner of Income-tax, Patiala v. Piara Singh [1980] 124 ITR 40 to submit that confiscation of currency notes in course of smuggling activities was held to be a loss directly from the carrying on of the business and was incidental to it and its deduction had to be allowed under section 10 of the Indian Income-tax Act, 1922. So far as the judgment in the case of Commissioner of Sales Tax v. Prabhudayal Prem Narain [1988] 71 STC 1 (SC) is concerned, the provisions of the Act and the Rules dealt with a different situation. In the present case, on a careful reading of the orders of the taxing authority together with the revisional order of the Tribunal, it is found that there is no insistence on a particular mode of proof for proving the claim of export sales, rather the insistence is on reliable evidence. The findings of the concerned authorities are based upon appreciation of evidence available on record and....
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....s allowed for the last quarter of the relevant year because ledger and cash book for that period were produced. It was submitted that when purchase memos and sale or cash memos were produced, disallowing the claim noticed above was illegal and arbitrary. Records show that this issue was not even noticed by the Commissioner. The Tribunal also did not address this issue for which the obvious explanation is that it was not raised before the Tribunal. This appears even from the order of the Tribunal dated July 7, 1993 which shows that even at the stage of review this issue was not pressed on behalf of the assessee. The submission on behalf of the petitioner that such claim for sales of tax-free goods had to be accepted by the taxing officer in spite of nonproduction of ledger and cash book for the relevant period, only on the basis of memos of purchase and sale cannot be accepted for the simple reason that ledger and cash book are required to be maintained regularly in course of the business and on that account they have a different sanctity and evidentiary value. Stray purchase memos and cash memos cannot have such evidentiary value. Hence, this question is also answered against th....
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....2, 13 and 21 or in any notification issued thereunder every dealer having a gross turnover exceeding the specified quantum as laid down in section 3 shall, with effect from a date to be specified by the State Government by a notification published in official Gazette, pay an additional tax at such rate, not exceeding two per cent of his gross turnover (excluding the sale or purchase of goods which have taken place either in the course of inter-State trade or commerce, or outside the State, or in the course of import of goods into, or export of goods out of the Territory of India) as the State Government may, from time to time by notification in the Official Gazette, fix." It has been held by the Supreme Court in the case of Kumar Distributors (P) Ltd. v. State of Bihar [1995] 99 STC 441 (SC); [1995] 5 SCC 593 that so far as charge of additional tax is concerned, section 6 is self contained, both for charging additional tax as well as its exemption. According to section 6, the additional tax is chargeable at specified rate not exceeding two per centum of gross turnover. Hence, for levy of additional tax the gross turnover is the only relevant factor once it is found leviable i....