2017 (8) TMI 803 - HC - VAT and Sales Tax

Concessional rate of tax - Section 8(1) of the Central Sales Tax Act, 1956, as well as under Section 13(1)(b) of the Bihar Finance Act - goods sold to registered dealer under Section 8(1) and 8(3) of the Central Sales Tax Act, 1956 - it appears that the petitioner is relying upon a notification issued by the erstwhile State of Bihar under Section 6(3)(c) of the Bihar Sales Tax Ordinance, 1976 dated 22nd December, 1976, whereby the Government of Bihar was pleased to exempt from levy of Special Sales Tax and General Sales Tax sale made to the United Nations International Children s Emergency Fund (UNICEF) of such goods as are certified by them to be required for use of the UNICEF. Held that - the exemption notification dated 22nd December, 1976 issued under Section 6(3)(c) of the Bihar Sales Tax Ordinance, 1976 is not a sale which is generally exempted from the tax to be levied under the Bihar Finance Act - the most important ingredient explained under Section 8(2A) of the Central Sales Tax Act, 1956 is sale or purchase of goods if exempted under the specified circumstances or under the specified conditions and not generally, under the Provincial Sales Tax laws applicable in the State, then they are liable for payment under Central Sales Tax Act, as they are not covered under Section 8(2A) of the Central Sales Tax Act, 1956. The conditions attached in the notification issued by the erstwhile State of Bihar dated 22nd December, 1976 is to the effect that if such goods are certified by them to be required for the use of UNICEF, then only such sales are exempted from the payment of Provincial Sales Tax, meaning thereby to, there is no general exception for, every type of sale of goods, to the UNICEF. Thus, benefit under Section 8(2A) of the Central Sales Tax Act, 1956 cannot be availed by this petitioner. Rate of tax - Sale made to registered dealer of store materials under Section 8(1) and 8(3) of the Central Sales Tax Act, 1956 - For such sale, the rate of tax applicable is 4%, whereas, the respondents-State Authorities have taxed the sale at the rate of 10% - tax to be levied at 4% or 10%? - Held that - there is no substance in the contention of the petitioner mainly for the reason that the store articles were purchased by this petitioner at a concessional rate for the particular type of end-use. After purchase at a concessional rate, the spare parts, etc. for the manufacturing of a particular type of goods the spare parts have been sold away to the registered dealer. Thus, the goods which were purchased at a concessional rate under Section 8(1) of the Central Sales Tax Act, 1956 or under Section 13(1)(b) of the Bihar Finance Act, cannot be now utilized for any other purposes. Such type of goods, which were purchased for a particular type of end use, have been sold away to the registered dealer and hence, this petitioner is liable to make payment of tax under Central Sales Tax Act at the rate of 10% and not at the concessional rate of 4%. Petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Exemption of sales to UNICEF under Section 8(2A) of the Central Sales Tax Act, 1956.
2. Tax rate applicable to inter-State sales of store materials purchased at a concessional rate.

Issue-wise Detailed Analysis:

1. Exemption of Sales to UNICEF under Section 8(2A) of the Central Sales Tax Act, 1956:

The petitioner challenged the orders disallowing the exemption of sales made to UNICEF under Section 8(2A) of the Central Sales Tax Act, 1956. The petitioner relied on a notification issued by the erstwhile State of Bihar under Section 6(3)(c) of the Bihar Sales Tax Ordinance, 1976, which exempted sales to UNICEF from 'Special Sales Tax' and 'General Sales Tax' for goods certified by UNICEF for their use.

However, Section 8(2A) of the Central Sales Tax Act, 1956, stipulates that the tax payable by a dealer on turnover related to the sale of goods exempt from tax under the State Sales Tax law shall be nil or calculated at a lower rate. The explanation clarifies that a sale or purchase is not deemed generally exempt if the exemption is conditional or specified.

The court referred to the Supreme Court's decision in Commissioner of Sales Tax, J & K v. Pine Chemicals Ltd., which emphasized that exemptions must be general and not conditional. The Bihar notification exempted sales to UNICEF only if certified for their use, thus not a general exemption. Therefore, the petitioner could not avail the benefit under Section 8(2A) of the Central Sales Tax Act, 1956. The authorities' view that the sales to UNICEF were not generally exempt was upheld.

2. Tax Rate Applicable to Inter-State Sales of Store Materials Purchased at a Concessional Rate:

The petitioner also contested the tax rate applied to inter-State sales of store materials worth ?28,29,774/-. The petitioner argued that these sales should be taxed at 4% under Sections 8(1) and 8(3) of the Central Sales Tax Act, 1956, instead of 10%.

The court noted that the petitioner purchased store articles at a concessional rate for specific end-use. These goods were then sold to registered dealers, which contravened the conditions of concessional purchase. The goods purchased at a concessional rate under Section 8(1) of the Central Sales Tax Act, 1956, or Section 13(1)(b) of the Bihar Finance Act, must be used for the specified purpose. Diverting these goods for other purposes subjects them to the normal tax rate of 10%.

The petitioner's argument regarding penalties under Sections 10A and 10(d) of the Central Sales Tax Act, 1956, was dismissed. The court clarified that penalties and tax levies are distinct; the breach of concessional conditions results in applying the normal tax rate, not just penalties.

Conclusion:

The court found no merit in the petitioner's arguments on both issues. The orders of the Assistant Commissioner of Commercial Taxes, the Joint Commissioner of Commercial Taxes (Appeal), and the Commercial Taxes Tribunal were upheld. The writ petition was dismissed.