TaxTMI 
TaxTMI 
2010 (10) TMI 966
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....ecord. The business of purchasing commission agency stands accepted by the assessing authority since its inception on November 9, 2005 till 2008-09 after detailed examination of the nature of transaction and books of account. The assessment orders of the previous years reflecting the aforesaid position have been brought on record. The petitioner purchases mentha oil from the farmers on behalf of ex-U.P. principal and dispatch as against statutory forms 6R, 9R and gate pass of mandi samiti. Mandi fee at the rate of 2.5 per cent is charged on removal of goods from mandi area for dispatch of goods to ex-U.P. principal. Name of ex-U.P. principal is mentioned on form 6R. The entry in books is also made on behalf of ex-U.P. principal. The goods are dispatched within two or three days of the purchase to the ex-U.P. principal as soon as one truck load of goods are purchased. The plea of the petitioner is that such transactions are exempted under section 7 of the U.P. Value Added Tax Act, 2008, in short "the Act", and the State Government has no legislative competence to impose tax on such transactions as held by the Supreme Court in Commissioner of Sales Tax v. Bakhtawar Lal Kailash ....
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....s drawn for the following reasons: (a) The test report of the percentage of menthol in the mentha oil obtained from the random sample from 10 drums is almost similar. (b) The inspection of the 6R shows that names of different farmers/ sellers have been written in the same manner. (c) The purchases on July 20, 2010 have been made from 38 persons which is not possible in one day. (d) There is difference in the entries of transfer invoice and form 9R as shown below: Sl. No. Entries in transfer Entries in 9R Particular Amount in Rs. Particular Amount in Rs. 1 Commission 6,660 Commission 6,660 2 Cartage 600 Cartage 3 Testing 500 Testing 4 Stamp 46 Stamp 1,146 5 Cost of drum/ mandi 2,33,100 Mandi fee 2,33,100 Total 95,66,386 95,66,386 A written reply was filed to the aforesaid show-cause notice. The petitioner urged that without considering their reply, the order for seizing the goods has been passed. The seizure order dated August 23, 2010 is based on the grounds that similar quality of mentha oil has been purchased from different farm....
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....sters or other documents maintained in the course of his business. The submission is that the goods mentioned in the transfer invoice and form 6R were the same and there being no anomaly, the same could not have been seized on the ground that they were not accounted for by the dealer in his account books. So far the plea of alternative remedy available to the petitioner is concerned, suffice would be to mention that no appeal would lie under the Act against the order of seizure. Further, in a case where the order passed by the authority is wholly without jurisdiction and if such an order affects the rights of petitioner adversely, the High Court would be justified in entertaining a petition under article 226 of the Constitution without requiring the petitioner to take recourse to other remedy available under the Act, particularly when no appeal lies against the order of seizure. A Division Bench of this court in the case of Gopal Traders v. State of U.P. reported in [2010] VSTI B-594 (All), while dealing with the case of alternative remedy, held that whenever from the record, it appears that some decision is taken without jurisdiction, then it is the constitutional obligation of....
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.... purchase and dispatch of goods, they could neither have been detained nor seized. The question whether it was an inter-State sale or intra-State sale, obviously cannot be decided by the mobile squad and it is for the assessing authority to record a finding on the aforesaid issue during the course of assessment. The learned counsel for the petitioner also relied upon various interim orders passed by this court in different writ petitions dealing with the same issue. In one of the petitions, i.e., Writ Petition No. 5624 (M/B) of 2006 in re: Rapti Commission Agency v. State of U.P., the court also took into consideration the plea that 74 drums of mentha oil could not have been purchased in one day from the farmers and the fact that the mentha oil was purchased by the petitioners on behalf of ex-U.P. principal. The High Court passed an interim order dated December 12, 2006, directing the release of goods without any security. This case is applicable in the present case also. Their Lordships also considered the decision in Girdharilal Jiwanlal v. Assistant Commissioner of Sales Tax (Appeals), Nagpur reported in [1957] 8 STC 732 (Bom) and the decision of the honourable Supreme Cou....