TaxTMI 
TaxTMI 
2009 (2) TMI 790
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....ver of bullion under entry 10 of Schedule II of S.R.O. No. 1727 of 1993. However, in order to prove exemption the purchaser has to issue declaration in annexure I of the said notification. The respondent admittedly has not issued any declaration in annexure I in terms of the notification. However since the respondent did not produce any sale bills issued by non-resident Indians, the assessing officer levied tax under section 5A treating the purchases as made in circumstances in which no tax is payable by the sellers. The Tribunal however held that since the respondent has not issued any declaration, liability under section 5A cannot be fastened on the purchaser merely because the sellers are not assessed to tax. The Government Pleader submi....
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.... Similarly, the contention of the respondent that since declaration in annexure I is not issued by them to the sellers, they cannot be assessed under section 5A is equally unacceptable. If any non-resident Indian who has sold bullion to the respondent is engaged in the business of importing and selling of bullion and if the turnover of such non-resident Indian exceeds the taxable limit, then sales tax should be assessed and recovered from such non-resident Indian as bullion is an item taxable at the sale point under section 5(1) read with relevant entry of the First Schedule to the Kerala General Sales Tax Act, 1963. If a non-resident liable to pay tax on sales of bullion wants to claim exemption under the notification above referred to the....
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....act that the seller is not a dealer engaged in the business of sale of bullion. The Tribunal's order cannot be sustained because the Tribunal declared exemption in favour of the respondent merely because they have not issued declaration in annexure I. We have already held that even if declaration prescribed under the notification is not issued, a non-resident seller cannot be assessed unless it is proved that such non-resident who made sales to the respondent is engaged in the business which is to be proved with reference to periodicity, frequency and volume of sales. We therefore allow the tax revision cases by setting aside the order of the Tribunal and remand the matter to the assessing officer for giving opportunity to the responde....