TaxTMI 
TaxTMI 
2019 (9) TMI 700
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....ons of U.P. Trade Tax Act, 1948 and the Central Sales Tax Act, 1956 and also from final assessment orders for A.Ys. 2002-03 to 2007-08 (U.P. and Central). 2. Since the points involved in all revisions are common or interrelated, the present revisions are being decided by a common order wherein facts of Sales/Trade Tax Revision No. 1068 of 2008 [arising from provisional assessment proceedings for October, 2007 (U.P.)] and Sales/Trade Tax Revision No. 188 of 2010 [arising from final assessment proceedings for A.Y. 2005-06 (U.P.)] are being taken note of. Also, the revisions filed against provisional assessment orders are being considered since the findings recorded and material relied overlap in the two proceedings of provisional and final assessment. 3. Sales/Trade Tax Revision No. 1068 of 2008 has been filed by the assessee against the order of the Commercial Tax Tribunal, Moradabad dated 02.08.2008 passed in Second Appeal No.256 of 2008. By that order, the Tribunal has dismissed the appeal filed by the assessee and held that the Department of Agriculture, Government of U.P. had not issued any guidelines whether tax may be imposed on the contents of Sulphur in Single Super Ph....
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....anying revisions arising both from provisional and also final assessment proceedings and; the question involved is purely legal with respect to the taxability and availability of exemption under the relevant notifications, the revisions arising from final assessment proceedings have been heard on merits on the followings questions of law:- "(i) Whether, there being no prescribed percentage of Sulphur (as S) as mentioned in the Control Order being present in SSP and the Phosphatic component of the Single Super Phosphate being exempt under notification No.440 dated 12.2.2001 and the other constituent Gypsum (for agriculture use) being exempt from payment of tax under notification No.784 dated 31.3.1995, the order of the Commercial Tax Tribunal upholding the taxability on estimated percentage of Sulphur is legally sustainable? (ii) Whether, in view of the letter of the Directorate of Agriculture, having specified that Sulphur is present in the form of Gypsum in Single Super Phosphate manufactured by the applicant, and Gypsum for agricultural use being exempt under the notification No.784 dated 31.03.1995, the Commercial Tax Tribunal was legally justified in upholding....
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....Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904) and in supersession of Government notification No. ST-2-1419/XI-9(51)/91-U.P. Act-XV/48-Order-91, dated August 30, 1991, the Governor is pleased to direct that, with effect from April 1, 1995, no tax under the said Act No. XV of 1948 shall be payable on sale of Gypsum (IS Code 6046) and Pyrite for agricultural use." 10. Next reference has been made to a letter dated 17.05.2008 issued by the Director of Agriculture, Uttar Pradesh to the assessee stating that the presence of Sulphur in Single Super Phosphate (SSP) occurs as a result of following chemical reaction : Ca3(PO4)2 Tri Calcium Phosphate + 2H2SO4 ^Sulphuric Acid + 4H2O Water = CaH4(PO4)2 Mono Calcium Phosphate + 2CaSO4.2H2O Gypsum 11. It has been further specified in that letter that the chemical formula for Gypsum is CaSO4.2H2O. 12. Reference has also been made to a letter dated 15.02.2008 written by the Assessing Authority of the assessee to the District Agriculture Officer making enquiries whether in the computation of the control price of ....
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....ation No. 440 dated 12.02.2001 is concerned, the value of entire quantity of Mono Calcium Phosphate [CaH4(PO4)2] would remain exempt and there is no quarrel with respect to the same inasmuch as undisputedly, there is no Sulphur content in the same. Then, referring to Gypsum (CaSO4.2H2O), it has been submitted that in any case, Gypsum (CaSO4.2H2O) for agriculture use was clearly exempt under the pre-existing exemption notification No. 784 dated 31.03.1995. Therefore, the fact that the Sulphur was contained in Gypsum (CaSO4.2H2O) would be wholly irrelevant and extraneous to the issue. 17. In any case, it has been submitted, in absence of any percentage being specified by the Department of Agriculture, Uttar Pradesh, as to the component of the Single Super Phosphate (SSP), that may be treated to be exempt, it was not open to the revenue authorities to carry out an independent exercise to discover what part of Single Super Phosphate (SSP) contained Sulphur. In absence of guidelines being issued by the Department of Agriculture, Uttar Pradesh, which was only an expert body recognized under the notification No. 440 dated 12.2.2001, the entire quantity of Single Super Phosphate (SSP) w....
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...., manufactured by the assessee. 21. Reliance has also been placed on the decision of the Supreme Court in the case of Govind Saran Ganga Saran Vs. Commissioner of Sales Tax and Others., 1985 (Supp) SCC 205, to submit that the four components of tax imposed must be found existing before a valid levy may arise. Any uncertainty or vagueness, either as to the character of the imposition, or to the person on whom the levy has been imposed or as to the rate on which the tax has been imposed or as to the measure or the value on which the rate is to be applied, would be fatal to the levy. In the instant case, besides other, there is no measure or value specified under the statutory scheme that may permit the revenue authorities to carry out any independent exercise to determine the value of content of Sulphur in the Single Super Phosphate (SSP), manufactured and sold by the assessee. Therefore, the exercise carried out by the revenue authorities in that regard, is without jurisdiction, presumptuous and in any case, wholly impermissible for the context of the taxing statute. 22. Reliance has also been placed on the decision of the Supreme Court in the case of C.I.T. Bangalore Vs. B.C.....
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....be determined in accordance with the guidelines issued by the Department of Agriculture. Inasmuch as the aforesaid order issued by the Central Government itself stated that Single Super Phosphate (SSP) contained 11% Sulphur, the same was clearly non-exempt and, therefore, taxable. 26. Reference has also been made to the communication issued by the Department of Agriculture, (as has also been referred to by learned counsel for the applicant-assessee), to submit that the prescription made by the Central Government is wholly corroborated by the communication issued by the Department of Agriculture, Uttar Pradesh, inasmuch as the Sulphur is clearly mentioned as an ingredient of Single Super Phosphate (SSP) manufactured by the assessee. 27. Further, learned Standing Counsel would submit, there is no case set up by the assessee that it sold Gypsum (CaSO4.2H2O) and, therefore, the Tribunal has not erred in rejecting the claim set up by the assessee. 28. Having heard learned counsel for the parties and having perused the record, in the first place, it is to be seen whether the commodity Single Super Phosphate (SSP) was granted exemption. Second, it would have to be examined if suc....
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.... lead to the conclusion either by necessary or other implication that it provides for determination of Phosphatic components in Single Super Phosphate (SSP). In fact, a plain reading of that order only brings out that it specifies the contents of (maximum) Moisture, (minimum) free phosphoric acid, (minimum) water soluble phosphates and (minimum) Sulphur that may be present in Single Super Phosphate (SSP). It does not satisfy the requirement of the exemption notification No. 440 dated 12.2.2001 and it does not bring out the total percentage of Phosphatic component in Single Super Phosphate. It does not even attempt to identify the Phosphatic component in Single Super Phosphate as an ingredient. 33. Even otherwise if the argument advanced by learned Standing Counsel were to be accepted to any extent, it may have no impact as in face of other undisputed evidence in the shape of certification letters issued by the Department of Agriculture, Uttar Pradesh, Sulphur is present in Single Super Phosphate (SSP) only as Calcium Sulphate i.e. Gypsum (CaSO4.2H2O) and not as Sulphur in its elementary form. Though no percentage of the Phosphatic component in Single Super Phosphate (SSP) had be....