TaxTMI 
TaxTMI 
2010 (2) TMI 1090
X X X X Extracts X X X X
X X X X Extracts X X X X
....ification entry No. 70 issued under section 41 of the Bombay Act? (2) Whether, on facts and in the circumstances of the case, was the Tribunal justified in law in absolving the respondent from his statutory liability on the sales effected to Zilla Parishad which is admittedly not a State Government solely on the ground that the purchaser, namely, Zilla Parishad is made liable to pay purchase tax on such purchases under section 41(2) of the Bombay Act? Section 41(2) of the Bombay Sales Tax Act reads as under: "41. (2) Where any dealer or person has purchased any goods under a declaration given by him under any of the notifications issued under this section and- (a) any of the conditions subject to which such exemption was granted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rred to as the Act, the assessing authority disallowed the claim of the appellant for sales against declarations in form AF amounting to Rs. 3,50,560 effected to Zilla Parishad. The respondents further aggrieved had preferred an appeal before the Deputy Commissioner of Sales Tax (Appeals) who was pleased to confirm the order of the assessment and disallow sales against the declarations in form AF issued by Zilla Parishad. The respondent aggrieved preferred second appeal bearing No. 634 of 1993 before the Tribunal. In the second appeal the learned Tribunal was pleased to hold considering the provisions of section 41 that it was a duty of the purchaser to effect purchase as per the condition notified in the declaration. The learned Tribuna....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Attention of the first appellate authority was invited to the fact that the Explanation under entry No. 70 is added to the notification only on April 1, 1987 therefore, sales against AF form to Zilla Parishad, etc., after April 1, 1987 only can be disallowed. This contention was rejected by holding that the notification only clarifies the position which existed before April 1, 1987 and accordingly dismissed the appeal. In the second appeal preferred before the learned Tribunal the contention advanced was that the duty was not cast on the respondent-dealer to see whether a particular Department is in fact a Government Department. It was argued that under section 41 the amendment which came into force with effect from April 1, 1987 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onsidered by the Tribunal while allowing the claim of the respondent for sales against declaration in form AF by Zilla Parishad. It would thus be clear that it is the submission of the appellants themselves that the second appellate authority did not consider the question of obligation on it to find out whether the declaration could have been issued. The submissions on behalf of the Department are reflected in para 3 of the order of the learned second appellate authority. Nowhere was this contention raised nor has the Tribunal anywhere referred to such a contention. Similarly, neither before the assessing authority nor before the first appellate authority was such a contention raised. It is only before the reference court that such a ....