2008 (8) TMI 848 - HC - VAT and Sales Tax

Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to hold that transportation charges and sales tax amount, not separately charged by the dealer from the customers, were not part of the turnover of the dealer? Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to allow exemption to the dealer on the sums charged from the customers for not returning the empty bottles after consumption of their contents, despite the fact that the definition of business as amended by Act No. 25 of 1985 dated September 13, 1985, included in its ambit ancillary and incidental transactions? Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to allow exemption on the exchange of empty bottles to the dealer, though the definition of sale as contained in section 2(h) of the U.P. Trade Tax Act did not exclude exchange from its ambit? Held that - Since the Tribunal has not examined the relevant material and has proceeded to decide the appeal on the assumptions and presumptions, it is desirable that the matter may be restored back to the Tribunal for fresh consideration in the light of the material available on record to find out the correct factual position in the light of account books and bill book, etc. Therefore, so far as question No. 1 is concerned, the matter is restored back to the Tribunal for fresh consideration. Taking up question No. 2 the controversy involved therein is no longer res integra and has been set at rest by the apex court in Kalyani Breweries Ltd. v. State of West Bengal 1997 (9) TMI 490 - SUPREME COURT OF INDIA wherein it has been held that non-return of the empty bottles and forfeiture of the security amount, amounts to sale under the Sales Tax Act. Therefore sufficient force in the argument of the learned standing counsel that cost of the empty bottles which have not been returned will amount to sale and as such the dealer-opposite party shall be liable to pay tax thereon. This part of assessment order is therefore legally justified. So far as the third question is concerned, the apex court in the case of Dhampur Sugar Mills Ltd. v. Commissioner of Trade Tax, U.P. 2006 (5) TMI 182 - SUPREME COURT OF INDIA has held that barter is conceptually different from the sale. Obviously, as held in the above case, exchange of bottles is not sale and the order of the Tribunal is therefore justified on this issue. Revision succeeds and is allowed in part

Summary

Issues involved:
1. Whether transportation charges and sales tax amount, not separately charged, should be considered part of the turnover.
2. Whether exemption should be allowed for sums charged from customers for not returning empty bottles.
3. Whether exemption should be allowed for the exchange of empty bottles.

Analysis:
1. The first issue revolves around the treatment of transportation charges in the turnover. The Tribunal accepted the dealer's argument that since transportation charges were separately charged, they should be excluded from turnover as per Explanation 1 to the definition of turnover. However, the High Court found that the Tribunal failed to properly assess whether the transportation charges were actually charged separately. The matter was remanded back to the Tribunal for fresh consideration based on factual evidence from account books and bill books to determine the correct position.

2. The second issue pertains to the exemption for sums charged from customers for not returning empty bottles. The High Court referenced a Supreme Court decision stating that non-return of empty bottles and forfeiture of security amounts constitute a sale. The Court found that the dealer forfeiting the security amount for non-returned bottles implied a transfer of ownership and sale, making the dealer liable to pay tax on the cost of the empty bottles. This part of the assessment was deemed legally justified.

3. The third issue involves exemption for the exchange of empty bottles. The High Court cited a Supreme Court case stating that exchange of bottles is not considered a sale, aligning with the Tribunal's decision. Therefore, the Tribunal's decision to allow exemption on the exchange of bottles was upheld.

In conclusion, the High Court partially allowed the revision by remanding the first issue back to the Tribunal for further examination while upholding the decisions on the second and third issues based on legal precedents and interpretations.