TaxTMI 
TaxTMI 
2014 (9) TMI 337
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....d under section 9(2) of the Central Sales Tax Act, 1956 by the Assistant Commissioner, Commercial Taxes, Corporate Division. In the wake of such assessment, a notice of demand for payment of Rs. 9,67,873,146 was issued in form 30 under the West Bengal Sales Tax Rules, 1995. Similarly, a demand notice in form 4 for payment of Rs. 84,964,124 was issued under the Central Sales Tax Act, 1956. Aggrieved by the order of the assessment, the petitioner preferred an appeal under the Act, 1994 and under the Act, 1956 before the Deputy Commissioner, Commercial Taxes, Corporate Division. On hearing the analogous appeals, the Deputy Commissioner of Commercial Taxes by a combined order dated June 26, 2002, directed the Assistant Commissioner of Commercial Taxes, Corporate Division, to reassess the due on consideration of the lawful claims. Thereafter, the Assistant Commissioner, Commercial Taxes, Corporate Division, passed the order of reassessment on March 22, 2004. It was followed by the issuance of notice in form 30 under the West Bengal Sales Tax Rules, 1995, showing excess payment of taxes to the tune of Rs. 15,29,138 under the Act, 1994. Another notice in form 4A was issued, showing exces....
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....as submitted that the order of the assessment may be reviewed by the person passing it upon application or on his own motion. The Appellate and Revisional Board may, in the like manner and for reasons to be recorded in writing, review any order passed by it, either on its own motion or upon an application. Such power of review can be exercised within a span of four years from the date of making the assessment or passing of any other order as per proviso (b) of sub-rule (2) of rule 249 of the West Bengal Sales Tax Rules, 1995. Citing the case of Commissioner of Sales Tax, M.P. v. Himmatlal and Co. reported in [1981] 47 STC 415 (MP), Mr. Ganguli has submitted that the time-limit for initiation of proceeding is to be reckoned from the date of assessment. It is submitted that no action having been taken by the authorities to modify the order of assessment within the stipulated period of four years, such order of assessment reaching finality cannot be modified in a, suo motu review proceeding after the lapse of four years. Mr. Ganguli has also cited the case of State of Gujarat v. Gujarat Small Industries Corporation Ltd. reported in [183] 53 STC 187 (Guj), to vindicate his stand that ....
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....allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expenses. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The concession having been granted in the form of trade discount, the rejection of the claim of the petitioner for discount by way of trade discount through credit note was not justified, as contended by Mr. Ganguli. The case of L.G. Electronics v. Commissioner of Trade and Taxes reported in [2010] 29 VST 588 (Delhi), has been referred to in support of his contention that in the event of tax burden not being shifted to dealers and distributors, rejection of the claims for refund was not warranted. The respondents have taken the stand that the Joint Commissioner in exercise of the power conferred under section 80 of the West Bengal Sales Tax Act, 1994, read with rule 245 of the West Bengal Sales Tax Rules, 1995, revised that part of the order which was not a subject-matter for decision at the appellate stage. The power of revision was exercised and not review, as apparent fr....
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....e permission of the Commissioner and on such terms and conditions as he may think fit to impose. In dealing with the question as to whether trade discount comes within the purview of sale price, the apex Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. Advani Oerlikon (P.) Ltd. reported in [1980] 45 STC 32 (SC), has underlined that under the Central Sales Tax Act, the sale price which enters into the computation of the turnover is the consideration for which the goods are sold by the assessee. In a case where trade discount is allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount. The trade discount does not enter into the composition of the sale price but exists apart from it and prior to it. It is immaterial that the definition of 'sale price' in section 2(h) of the Act does not expressly provide for the deduction of trade discount from the sale price. Indeed, having regard to the circumstances that the sale price is arrived after deducting the trade discount, no question of deducting any sum from the sale price by way of trade discount arises. It has also been highlighted that having regar....
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....scount which was known and understood at the time of removal of goods. There was no whisper in the invoices as to discount being allowed. No recurring credit scheme was also introduced to allow the purchasers get the discount through credit notes. It was not a turnover discount through issuance of credit notes to encourage turnover of sales. As provided in sub-rule (3) of rule 244 of the West Bengal Sales Tax Rules, 1995, the authorities referred to in sub-rule (1) or sub-rule (2) shall be called the revisional authority for the purposes of section 80 or section 81, as the case may be. Rule 245 of the West Bengal Sales Tax Rules, 1995 provides that- '245. Proceedings for suo motu revision by the revisional authorities.-(1) Where it appears to the revisional authority referred to in subrule (3) of rule 244 that an assessment order or any other order passed by an authority subordinate to him under the Act and rules made thereunder is required to be revised by him, on its own motion, under section 80, such revisional authority shall serve upon a notice in form 55 with a gist of the proposed order directing him to appear before him and show cause on the date and at the time and ....
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....ication is dismissed. There will be no order as to cost. SABYASACHI ROY (Technical Member).-I agree." Joydeep Kar, Anirban Mitra, Souvik Guha and Prasenjit Saha for the petitioner. Abhratosh Majumdar and Soumitra Mukherjee for the respondents. KALYAN JYOTI SENGUPTA ACTG. C.J.-The above appeal has been directed against the judgment and order of the learned Tribunal dated July 26, 2011(Crompton Greaves Ltd. v. A.C.C.T., Corporate Division) See page [2013] 61 VST 008. by which an application under section 8 was dismissed and thereby order passed by the revising authority was upheld. The short undisputed fact leading to filing application before learned Tribunal is as follows: The petitioner/assessee filed returns of sale of four quarters ending with March 31, 1997, wherein the appellant claimed deduction of Rs. 2,92,42,976 towards issue of credit notes and submitted details thereof. Out of the said credit notes an amount of Rs. 2,74,90,912 was claimed under the States Act and Rs. 17,52,063.79 was claimed under the Central Act. The petitioner while submitting returns could not adjust the aforesaid amount of credit notes, as such the petitioner collected sales tax on the basis of ....
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....ter the petitioner made repeated representation for refund of the excess amount of sales tax. Instead of refunding the petitioner was served with a notice in form 55 by the Senior Joint Commissioner, Commercial Taxes, Corporate Division dated September 15, 2009, under rules 245, 249 and 264 of the West Bengal Sales Tax Rules, 1995. The alleged deduction of a sum of Rs. 2,89,45,873 being credit notes issued for additional discount allowed by the Assistant Commissioner, Commercial Taxes, Corporate Division, was not allowable as per section 2(31) and section 2(40) of the WBST Act, 1994 resulting in excess payment. Therefore by the said notice it was proposed to levy tax on the said amount modifying the impugned order of assessment as per provisions of the law. The petitioner accordingly raised objection to the said notice, objection was overruled by the Senior Joint Commissioner of Commercial Taxes and passed an order in exercise of power of suo motu revision/review and the earlier order of assessing officer was recalled. Before the learned Tribunal basically two points were urged in the said application under section 8 that the suo motu power of revision/review was time-barred as or....
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....aforesaid provision cannot be read in restricted manner to come to the conclusion that trade discount allowed subsequently to be presented is not permissible under the statute. In this connection he has referred to a decision of the Supreme Court in case of IFB Industries Ltd. v. State of Kerala [2012] 49 VST 1 (SC). In any event suo motu order of revision is unsustainable in law as it is passed solely relying on the judgment of the West Bengal Taxation Tribunal passed in RN. 26 of 2003 (DCCT, Corporate Division v. M.R.F. Ltd. [2008] 14 VST 124 (WBTT)). The said judgment ought not to have been relied as it was delivered by the West Bengal Taxation Tribunal on July 11, 2006, subsequent to the order of reassessment dated March 22, 2004. Subsequent pronouncement cannot be a basis for reversing the earlier decision on the same point. Besides the Senior Joint Commissioner has wrongly exercised jurisdiction in passing the impugned order dated February 9, 2010 as the suo motu power has been exercised by the revisional authority as being an appellate authority not as revisional authority. Actually the Senior Joint Commissioner was reviewing the order of the Deputy Commissioner holding the ....
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....w. Rule 245 of the West Bengal Sales Tax Rules, 1995 prescribed the procedure for exercise of power of suo motu revision by the revising authority. The said provision is set out hereunder: "245. Proceedings for suo motu revision by the revisional authorities.-(1) Where it appears to the revisional authority referred to in sub-rule (3) of rule 244 that an assessment order or any other order passed by an authority subordinate to him under the Act and Rules made thereunder is required to be revised by him, on its own motion, under section 80, such revisional authority shall serve upon a notice in form 55 with a gist of the proposed order directing him to appear before him and show cause on the date and at the time and place specified in such notice as to why the order referred to therein shall not be revised: Provided that no assessment order or any other order shall be revised by the revisional authority, on his own motion- (a) if the time for presenting an appeal from such assessment order or the application for revision of such order has not expired, or (b) if the assessment order or any other order has been passed six years before the date of revision: . . ." Thus six years i....
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....atter covered by the initial assessment order. The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment. . ." It is immaterial what ground has been taken to prefer appeal but ordering portion is the relevant factor to examine this aspect. There has been no challenge to the said order of the appellate authority. It has now become final and binding. We appropriately quote the relevant portion of the ordering portion of two appeals as follows: A-638/AW/99-00 under WBST Act 1994 "The dealer has no other point of dispute. Thus the order of assessment is 'set aside' and remanded back to the learned assessing officer for fresh assessment in view of the above discussion." A-639/AW/99-00 under CST Act 1956 "Finally the above two appeal cases disposed of as 'set aside' and remanded back to the learned assessing officer for fresh assessment in the light of the above discussion allowing the dealer reasonable opportunity of being heard." Thus we are of the view disagreeing with the contention of Mr. Kar that original assessme....
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....ntly the prayer for additional discount in the form of credit notes was not sustainable. It is further on fact found that the petitioner herein had realized the full price with the sales tax and surcharge without any mention of discount being allowed in any manner whatsoever. It is not a discount, which was known and understood at the time of removal of the goods. There was no whisper in the invoices as to discount being allowed. No recurring credit scheme was also introduced to allow the purchasers to get the discount through the credit notes. It was not turnover discount through issuance of credit notes to encourage turnover of sales. The learned Tribunal has correctly applied the decision of the Supreme Court in case of Deputy Commissioner of Sales Tax (Law) v. Advani Oerlikon (P.) Ltd. reported in [1980] 45 STC 32 (SC); [1980] 1 SCC 360. Moreover the Division Bench of this court almost in identical issue in case of WPTT No. 793 of 2006 and other three matters (M.R.F. Ltd. v. Assistant Commissioner, Commercial Taxes, Corporate Division) has held that as follows: "The discount is available at the time of removal of the purchased goods. The discount amount was quantified at the....