2011 (12) TMI 479 - HC - VAT and Sales Tax

Whether the petitioner is entitled to be taxed in accordance with section 5(3) read with second proviso to Explanation II of the Sixth Schedule? Held that - For the purpose of allowing rebate in such a case, the burden is certainly on the dealer to satisfy the revisional authority as well as the second appellate authority. They failed to do so. The Tribunal observed that the appellate authority found that the petitioner did not produce any credible evidence for discharging the burden. Having not produced any evidence before the revisional authority as well as Tribunal, we are afraid the petitioner cannot sustain these revisions under section 22(1) of the Act. The order of the Tribunal does not suffer from any error of law. One cannot ignore the fact that the Sixth Schedule was substituted with effect from April 1, 1995 by reason of A. P. Act No. 22 of 1995. Therefore, unless and until the opening stock on which the tax was paid at the first point of sale is available and the closing stock is entered correctly, it is not possible to allow the rebate under the second proviso to the Sixth Schedule. In so far as adding of the impugned turnover of ₹ 5,57,623 it was found that even according to the dealer, the disclosed sales stood at ₹ 67,56,133 as against the assessed turnover of ₹ 61,98,510. Hence, when the revisional authority added back the turnover which was not subjected to tax, we do not find any error therein. Appeal dismissed.

Issues:
1. Disallowance of tax rebate on plywood purchases due to lack of proof of tax paid at preceding point of sale.
2. Challenge of adverse findings by revisional authority regarding disclosure of opening and closing stock.
3. Dispute over adding turnover without prior notice to the dealer.
4. Interpretation of provisions under section 5(3) read with second proviso to Explanation II of the Sixth Schedule for tax calculation.

Issue 1: Disallowance of tax rebate on plywood purchases
The petitioner, a business firm dealing in plywoods and general goods, was assessed for the year 1995-96 with a rebate of &8377; 2,44,961 based on tax paid at the preceding point of sale on plywood. However, the Deputy Commissioner of Commercial Taxes revised the assessment, disallowing the rebate. The petitioner argued that plywood is taxable at every point of sale per the Sixth Schedule, and thus, the tax should be determined under section 5(3) with the second proviso to Explanation II. The revisional authority found the petitioner failed to provide proof of closing and opening stock, leading to the disallowance of the rebate. The Tribunal upheld this decision, stating that the burden of proof was not discharged by the dealer. The petitioner's reliance on a circular for unconditional rebate was rejected, emphasizing the need for proper evidence for claiming rebates.

Issue 2: Challenge of adverse findings on stock disclosure
The petitioner contested the adverse findings of the revisional authority regarding the disclosure of opening and closing stock. The revisional authority issued a show-cause notice due to rebate discrepancies, which the petitioner explained by referring to a circular supporting unconditional rebate based on tax paid at the preceding point of sale. However, the revisional authority found the explanation insufficient as it did not address the opening and closing stock details. The Tribunal concurred, emphasizing the dealer's failure to provide credible evidence to discharge the burden of proof, resulting in the dismissal of the revisions under section 22(1) of the Act.

Issue 3: Dispute over adding turnover without prior notice
The petitioner raised concerns about the revisional authority adding a turnover of &8377; 5,57,623 without prior notice. The Special Counsel for Commercial Taxes argued that the dealer did not produce bills covering purchases, making it challenging to determine tax liability as per the Explanation. The Tribunal upheld the decision, stating that the petitioner failed to provide evidence before the revisional authority and the Tribunal, leading to the dismissal of the revisions under section 22(1) of the Act.

Issue 4: Interpretation of tax calculation provisions
The key consideration was whether the petitioner could be taxed under section 5(3) read with the second proviso to Explanation II of the Sixth Schedule. The provisions highlighted the tax levy on sales or purchases of goods, deductions allowed, and the prohibition of double taxation. The Sixth Schedule specified tax leviable on goods like plywood at every point of sale, with provisions for deduction based on tax paid at the preceding point of sale. Rule 5 clarified the turnover calculation for dealers claiming rebates under section 5(3), emphasizing the necessity of proof for tax paid at the preceding point of sale. The judgment emphasized the importance of accurate stock details for rebate calculations and upheld the revisional authority's decision based on lack of evidence provided by the dealer.

In conclusion, the High Court of Andhra Pradesh dismissed the revisions due to the petitioner's failure to provide sufficient evidence, particularly regarding stock details and proof of tax paid at the preceding point of sale. The judgment underscored the importance of meeting evidentiary requirements for claiming rebates and tax deductions under the relevant provisions of the Act and the Sixth Schedule.

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