1997 (2) TMI 522 - AT - VAT and Sales Tax

Summary

Issues:
1. Transfer of application for revision to Rajasthan Taxation Tribunal under section 15, Rajasthan Taxation Tribunal Act, 1995.
2. Refund of excess tax paid by the assessee-respondent.
3. Burden of proof regarding passing on the tax incidence to customers.
4. Consideration of affidavit as evidence by assessing authority.
5. Utilization of purchased HSD oil for power generation.

Analysis:
1. The judgment pertains to the transfer of an application for revision to the Rajasthan Taxation Tribunal under section 15 of the Rajasthan Taxation Tribunal Act, 1995. The case originated from an order of the Rajasthan Sales Tax Tribunal directing the petitioner to refund the excess tax paid by the respondent. The Tribunal, upon establishment, took over the jurisdiction and proceeded with the matter.

2. The facts of the case revolve around the purchase of HSD oil by the assessee-respondent, who paid tax at 12½ per cent. The Additional Commissioner determined that the tax was only payable at 4 per cent under the relevant section of the Rajasthan Sales Tax Act, leading to a refund claim of Rs. 86,212 by the assessee. The dispute arose when the assessing authority rejected the refund application on the grounds of failing to prove that the tax incidence was not passed on to customers.

3. The crux of the issue lies in the burden of proof regarding the passing on of tax incidence to customers. The department contended that the Tribunal erred in allowing the second appeal and directing the refund without sufficient evidence from the assessee. However, the Tribunal found that the respondent had discharged its burden by providing an affidavit stating that the tax amount was not passed on to any person, a fact accepted by the Tribunal due to lack of contradictory evidence or examination of account books by the assessing authority.

4. The Tribunal considered the affidavit of the Manager (Accounts) submitted by the respondent as a crucial piece of evidence in determining the tax incidence. Despite the assessing authority and Deputy Commissioner not believing the affidavit without valid reasons, the Tribunal found it uncontroverted and unrebutted, leading to the acceptance of the respondent's claim.

5. Lastly, the Tribunal examined the utilization of the purchased HSD oil for power generation, confirming that it was not used for manufacturing goods for sale or works contract execution. Based on the circumstances and evidence presented, the Tribunal upheld the decision of the Rajasthan Sales Tax Tribunal, dismissing the application for revision without imposing any costs.

In conclusion, the Tribunal found that the respondent had successfully proven that the tax incidence was not passed on to customers, leading to the dismissal of the revision application and upholding the refund order issued by the Rajasthan Sales Tax Tribunal.