TaxTMI 
TaxTMI 
2015 (3) TMI 915
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....lated under entry J-8 which has been introduced on 6.3.1996 with retrospective effect i.e. subsequent to the assessment period ?" 2. The statement of facts which accompany this Reference reveals that M/s. Auto India-applicant is an importer and re-seller of vehicles, vehicle components, parts and accessories thereof, televisions, refrigerators, air-conditioners, washing machines, audio equipment etc. It was assessed under sections 33(3) and 33(5) of the Bombay Act i.e. The Bombay Sales Tax Act, 1959 for the period 1st April, 1995 to 31st March, 1996. The assessment order was passed on 9th November, 1998. That resulted in demand of Rs. 3,25,547/-. 3. Aggrieved by this assessment order, the dealer preferred First Appeal before the Deputy Commissioner of Sales Tax (Appeals). That was partly allowed on 2nd January, 2001. Still being dissatisfied, the dealer preferred a Second Appeal before the Tribunal. The Second Appeal being Appeal No.485 of 2001 came to be allowed partly by a judgment and order dated 10th June, 2005. The matter was remanded to the Assessing Authority with directions and one of which is that benefit of Entry J-8 is not available to the dealer-appellant before u....
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....oted the rival contentions. We have not allowed the parties to refer to plethora of case laws on the principle as to when can a provision be said to be mandatory or directory and what is the doctrine of strict compliance and substantial compliance simply because we find that the Tribunal has extensively referred to the contentions of the parties. In the course of dealing with this issue, the Tribunal found that Entry J-8 has been incorporated on 6th March, 1996, with retrospective effect from 1st October, 1995. In the case before us, the dealer had filed usual monthly returns claiming deduction under Rule 46A and showing tax liability at various rates i.e. 10%, 13%, 16% and 19%. The Entry was further amended in the year 1997. The annual return was filed on 2nd July, 1998 showing tax liability as per the provisions of Entry J-8. Therefore, the claim of the dealer was that benefit of this Entry be granted to him and the matter be remanded back to the Assessing Authority to work out the tax liability in accordance with the provisions of Entry J-8. 8. This course was objected by the Revenue by pointing out that the dealer did not comply with the conditions of Entry J-8 and hence thi....
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....s obliged to make a reference to those cases in details. The Tribunal was obliged to consider as to whether these judgments or orders rendered by it applied to the facts and circumstances of the present dealer or were there any other distinguishing features or facts therefrom. Further, whether the said orders are contrary to any binding judgment of the higher court or are rendered in ignorance of a statutory provision and therefore, raise debatable issue and which require opinion from a higher court on a question of law. The Tribunal does nothing of this kind, but simplicitor refers to all the case laws in the field and the case of the dealer and the Revenue. If we note the stand of the Revenue itself, then, it is apparent that its representative did not adopt an extreme position nor did the representative contend that the Entry J-8 having been incorporated on 6th March,1996, further amended in 1997, the monthly return should have been filed after incorporation but that the dealer failed to do so in this case. Thus, the extreme position as the Tribunal found from the stand of the parties and requiring a question to be referred to this Court and as stated to be of law has not been a....
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....rnished in sections 11 or 12 if the requirements of section 12 are satisfied. Then, there is certain proviso and sub-clauses and explanation. Therefore, if resales are made by registered dealers of goods other than the tax free goods in respect of which deduction from turnover of sales under section 8 is not allowed only because of the provisions contained in sub-section (3) of section 12A, but certain exclusions therefrom are dealt with by this Entry. The Entry is itself referable to these provisions and the conditions that have been specified therein, particularly condition VI indicates that notwithstanding anything contained in the Rules, the selling dealer shall pay tax and file returns, as if he is liable to file monthly returns and make payment of tax at 8% on the said excess calculated in accordance with the columns 3 and 4 in respect of each month. The Tribunal should have further referred to the Rules and particularly the rule in question. That rule has been brought to our notice and which is Rule 46B. The rule as it stood at the relevant time and before it was deleted provides for and deals with the reduction of sales price for levy of sales tax in the case of a dealer li....
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....er sub-section (1) of section 8 from the turnover of sales of goods because of section 12A(3) or, as the case may be, sub-section (3)(a), then, in respect of such sales he may deduct from the sale price before reducing it in accordance with Rule 46A the purchase price of such goods. Therefore, there are stipulations in the rule itself and if the dealer in this case who was registered has dealt with another registered dealer, then, with a view to enable him to obtain these reductions that the provisions have been inserted. To give effect to the rule itself and completely that one finds that the Entry has been inserted. If that Entry has come into force as in the case of the present dealer at a later date, but is given effect to from the prior date, then, compliances with certain conditions can be made later on. If one is concerned with only condition No.VI then, we have already indicated as to how in several orders of the Tribunal itself, this condition is considered and held to be capable of substantial compliance. In the present case on the admitted facts, the Tribunal found that the condition is capable of substantial compliance. The later observations of the Tribunal with regard....