2006 (11) TMI 610 - HC - VAT and Sales Tax

Summary

Issues:
Levy of tax on purchases of khali as a commission agent without form IIIB.

Analysis:
The judgment pertains to a revision under section 11 of the U.P. Trade Tax Act, 1948, challenging an order of the Tribunal related to the assessment year 1991-92. The dispute revolves around the imposition of tax amounting to Rs. 2,95,710 on purchases of khali as a commission agent without the requisite form IIIB. The assessing authority levied the tax due to the absence of form IIIB. The Tribunal, however, allowed the appeal and removed the tax liability, stating that the principal had issued form IIIB, making the principal liable for the tax, not the commission agent.

The key contention raised was whether the commission agent, as per section 2(c) of the Act, is liable for tax. The Standing Counsel argued that only dealers holding recognition certificates are entitled to tax benefits under section 4B of the Act. The benefit under section 4B(a1) applies to declared commodities, excluding khali. The Tribunal's decision was based on the issuance of form IIIB by the principal, holding the principal accountable for the tax. The dealer's counsel supported this view.

Upon review, the judge found merit in the Standing Counsel's argument. Section 2(c) designates the commission agent as a dealer liable for tax. Section 4B(1) specifies that only dealers with recognition certificates benefit from concessional tax rates. Section 4B(a1) applies to declared goods, excluding khali. Citing a previous court ruling, the judge emphasized that only dealers with recognition certificates are eligible for section 4B benefits, not commission agents. The argument that form IIIB issuance absolves the dealer of tax liability was deemed irrelevant by the judge.

Furthermore, section 3D(3) states that if a commission agent pays tax on the principal's behalf, the principal is not taxed. Consequently, the Tribunal's decision was deemed erroneous, and the tax on khali purchases was reinstated. The Tribunal was instructed to issue an appropriate order under section 11(8) of the Act.