2005 (12) TMI 534 - HC - VAT and Sales Tax

Summary

Issues:
Challenge to order of attachment under section 48A of the Act and notices for provisional assessment under section 41B of the Act.

Analysis:
The petitioner, a cement manufacturer, challenged the order of attachment and provisional assessment notices for the years 2001-02 to 2003-04. The petitioner sells cement in Gujarat at ex-dump price and transports it to buyers at buyer's cost. The authorities alleged that freight charges collected by the petitioner were part of the sale price and taxable. The petitioner argued that only 28% of sales required freight recovery from buyers. The petitioner contended that the notices were unwarranted as no tax evasion occurred. The authorities argued that the separate debit notes for freight were a tax avoidance scheme. The petitioner cited pricing policy and market conditions affecting cement prices.

The petitioner relied on judgments to support their case, emphasizing the distinction between taxable and non-taxable freight charges. The respondent argued that the petitioner's actions were aimed at tax avoidance. The respondent highlighted the broad definition of "sale price" under the Act, including charges for goods done before delivery. The respondent cited judgments supporting their interpretation of taxable turnover.

Sections 41B and 48A of the Act were inserted in 1998, providing for provisional assessment and attachment to protect revenue. The court noted that formation of opinion by the Commissioner on tax evasion was crucial for action under section 41B. The court disagreed with the petitioner's claim that the freight charges were not part of the sale price. The court emphasized the need to examine all records before determining tax liability.

The court dismissed the petition, stating that the challenge to the provisional attachment order was time-barred. The court upheld the authorities' right to proceed with the provisional assessment and directed the petitioner to cooperate. The court concluded that the matter involved disputed facts requiring a thorough review, and exercising judicial review under article 226 was not warranted. The petition was dismissed with costs, and the rule was discharged.