TaxTMI 
TaxTMI 
1988 (4) TMI 435
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....se of export out of the territory of India within the meaning of Section 5(2) (a) (v) of the Bengal Finance (Sales Tax) Act 1941 and the Sales Tax under the Act would not be applicable in respect, of the said sales and as such did not include such Sales Tax in the bills and/or invoices submitted to the defendant in respect of the said sales. By and under Assessment Order, dated 22nd February, 1974 passed by the Commercial Tax Officer, Lyons Range, Calcutta in the relevant provisions of the Act in respect of the said Financial year, the taxable turn over of the plaintiff was arrived at after deducting therefrom the said sales under and/or in terms of Section 5(2) (a) (v) of the Act. However, the Supreme Court of India by its judgment, dated 16th April, 1975 delivered in, the case of Md. Sirajuddin v. State of Orissa held that where the mineral ore had been sold by the appellant namely, Md. Sirajuddin to the defendant State Trading Corporation of India Ltd. and that the defendant in its turn entered into similar contracts with the foreign buyers for sale of the identical goods purchased by it from Md. Sirajuddin, the sales of Md. Sirajuddin to the defendant were exigible to tax becau....
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.... concerned authorities whereby the plaintiff was directed to pay a sum of ₹ 62,021.62 failing which it was threatened that the said amount would be recovered from the plaintiff as an arrear of Land Revenue as sales penalty and on 12th March, 1979 the plaintiff was constrained to pay and paid the said sum of ₹ 62,021.62 as per the demand contained in the said revised notice of assessment. The plaintiff is entitled to recover the said sum from the defendant and the defendant is bound to pay the same to the plaintiff. But the defendant purported to deny its liability for the said sum and has failed and/or neglected to pay the same. In the circumstances the plaintiff is entitled to claim and claims compensation amounting to ₹ 17,650 on account of its inability to utilise the said sum of ₹ 62,021.62 from the date of payment namely, 12th March, 1979 until the date of institution of the Suit, i.e., the interest which is the plaintiff could have earned in the said sum calculated at the rate of. 15% per annum. Therefore, the plaintiff has filed the suit for recovery of the sum of ₹ 79,071.62. 4. The defendant in the written statement has denied the plaintiff&#....
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....liable for anything under and in respect of the said order ? 7. Is the plaintiff entitled to claim any interest or compensation from the defendant in respect of the said transaction ? 8. To what relief, if any, is the plaintiff entitled ? 6. ISSUE NOS. 1, 2, 3 and 4 : These issues being inter connected are taken up together for reasons of convenience. It is an admitted position that in respect of the sales transactions, of B. Twills that took place in between the plaintiff and the defendant for the sum of ₹ 1,24,66,655.54 there was initially no assessment of sales tax and the said amount was admittedly allowed exemption under Section 5(2) (a) (v) of the Bengal Finance (Sales Tax) Act 1941 and the Assessment Order, dated 22nd February, 1974 of the Commercial Tax Officer, Lyons Range, Calcutta in respect of the financial Year in question the taxable turn over of the plaintiff was arrived at after deducting therefrom the above sales that took place between the plaintiff and the defendant under the above Section. After the decision of Md. Sirajuddin v. State of Orissa reported in AIR 1975 SC page 1964, the said Assessment. Order was revised on issuing proper notice to the plai....
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.... bound by the Order passed by the Assistant Commissioner or not is not a material consideration in this case. I am of the view that the plaintiff has founded his claim in the suit for recovery of arrears of Sales Tax and the compensation thereon, not on the ground that the defendant is bound by the Order, dated 21st November, 1977 but because under the provision of Section 64A of the Sale of Goods Act, 1930 the amount of Sales Tax paid by the plaintiff on account of sales in question is per se recoverable from the defendant in view of the mandate of Section 64A of the Sale of Goods Act. 10. I am of the view that the contention of the plaintiff in this respect is quite proper. Therefore, whether the defendant is bound by the order or not is related to the question as to whether he is liable to pay the amount in view of Section 64A of the Sales of Goods Act. I would now take up that issue. .The issue in question is disposed of accordingly. 11. ISSUE NO. 5 : It is submitted that the plaintiff is not entitled to raise any demand on account of Sales Tax under Section 64A of the Sales of Goods Act, after the contract of sale has been worked out and there had been any complete accord an....
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....r for the sale or purchase of such goods tax paid where tax was chargeable at that time : (a) If such imposition or increase so takes effect that the tax or increased tax, as the case may be, or any part of such tax is paid or is payable, the seller may add so much to the contract price as will be equivalent to the amount paid or payable in respect of such tax or increase of tax, and he shall be entitled to be paid and to sue for and recover such addition ; and (b) If such decease or remission so takes effect that the decreased tax only, or no tax, as the case may be, is paid or is payable, the buyer may deduct so much from the contract price as will be equivalent to the decease of tax or remitted tax, and he shall not be liable to pay, or be sued for, or in respect of, such deduction. 2. The provisions of sub-section (1) apply to the following namely : (a) any duty of customs or excise on goods, (b) any tax on the sale or purchase of a goods." 13. I am of the view that regard being had the language used in Section 64A of the Sale of Goods Act such a restricted nature of liability of the buyer is not contemplated. In the Madras case the learned judges were deciding a....