2019 (8) TMI 123 - HC - VAT and Sales Tax

Whether upon the facts and circumstances of the case, the imposition of tax on purchases made from unregistered dealers can be subjected to tax within the meaning of Section 3 AAAA of the Uttar Pradesh Trade Tax Act, despite the disclosed production has been accepted by the assessing authority? - HELD THAT - There appears to be no error, insofar as the asseessee has been subjected to tax on purchase worth ₹ 40,161/- made from the unregistered dealer. The question of law is answered in the affirmative i.e. against the assessee and in favour of the revenue. Whether upon the facts and circumstances of the case, the Tribunal was justified in confirming the orders of lower authorities in imposing tax @ 8% on the sale of old and useless machineries without affording proper opportunity to produce evidence for the same? - HELD THAT - There is no allegation of the assessee having dealt with in new machinery. There is absolutely no evidence to establish that the machineries sold by the assessee were in any way new. The fact that those machineries may be usable cannot be a decisive or relevant factor. The fact that certain machineries though old may be in working order would not be relevant for the purpose of subjecting the same to tax - In the facts of the present case, the revenue has not only failed to adduce any evidence to establish that the machineries sold by the assessee were new, rather it is admitted to the assesssing officer, that the machineries were old. Therefore there appears no basis on which the same could have been subjected to higher rate of tax @ 8%, treating the same to be new - answered in the negative i.e. in favour of the asseesee and against the revenue. Whether upon the facts and circumstances of the case, the amount received for providing tender forms to customers be termed as sale within the meaning of Section 3 F of the U.P. Trade Tax Act? - HELD THAT - Considering the fact that the present revision is for A.Y. 2000-01 (UP) and 19 years have passed since then, the question is purely academic. Therefore, question of law as framed in the memo of revision, is being returned and answered, leaving it open to the assessee to raise that issue in any year when that issue is an alive issue i.e. where the assessee may have been saddled with the liability by means of the assessment order but it may not have charged or deposited the tax amount. Whether upon the facts and circumstances of the case, the Tribunal was justified in confirming the tax on machineries given to other chini mills and returned to revisionist after use, treating the same as sale? - HELD THAT - Insofar as it is not disputed that the plant and machinery had been leased out by the assessee and it received lease rent, the fact that the activity of leasing may have been performed upon a direction issued by the federation, would be of no consequence insofar as the tax assessment of the assessee is concerned. For that purpose, all that is relevant to be examined whether the assessee had leased out the equipment against which it received lease rental. Insofar as it is not disputed that the assessee had leased out the equipment against payment towards lease rent as a part of its business operations, there appears no substance in the contention that the assessee was not liable to tax on that amount - As to the refund of ₹ 14,21,642/-, admittedly, the same was made by the assessee after six months from the date of delivery of the goods. That finding has been recorded by the Tribunal, which has not been assailed as perverse or otherwise illegal - answered in the affirmative i.e. against the assessee and in favour of the revenue. Whether upon the facts and circumstances of the case, the supply of cement and iron to contractors for construction of building and adjusted at the time of payment to them be termed as sale? - HELD THAT - There is involved passing of the property in such supplies by virtue of adjustment in bills. Therefore, it satisfies the definition of sale under the Act - answered in the affirmative i.e. against the assessee and in favour of the revenue. Revision allowed in part.

Summary

Issues:
1. Tax imposition on purchases from unregistered dealers
2. Tax rate on sale of used machinery
3. Tax assessment on sale of tender forms
4. Tax treatment of machinery given to other mills
5. Tax liability on supply of cement and iron in works contract

Analysis:

1. Tax imposition on purchases from unregistered dealers:
The revisionist challenged the tax imposition under Section 3 AAAA for purchases from unregistered dealers. The counsel argued that since the sellers were petty dealers below the registration threshold, they could not charge tax. However, the Standing Counsel pointed out that Section 3 AAAA mandates tax liability on purchases from unregistered dealers regardless of other circumstances. The court upheld the tax imposition due to the clear provision of the law.

2. Tax rate on sale of used machinery:
The revisionist contested the taxing of used machinery at 8% instead of the admitted 5%. The counsel argued that the machinery was old and not new. The Standing Counsel highlighted the lack of evidence supporting the claim of old machinery. The court noted that the assessing officer acknowledged the machinery as old, and without evidence of new machinery, the higher tax rate was unjustified. Thus, the court ruled in favor of the revisionist.

3. Tax assessment on sale of tender forms:
The revisionist disputed the tax assessment on tender forms, claiming they were merely documents supplied against tenders. The Standing Counsel mentioned the admission and tax deposit by the assessee. The court, considering the academic nature of the question and the time elapsed, returned the issue for future consideration.

4. Tax treatment of machinery given to other mills:
The revisionist argued that leasing machinery to a sister concern was not a sale but a cooperative action directed by the federation. The Standing Counsel emphasized that leasing for payment constituted a taxable event, irrespective of directives. The court upheld the tax liability, including the refunded amount.

5. Tax liability on supply of cement and iron in works contract:
The revisionist claimed no property transfer occurred in supplying cement and iron for works contracts. The Standing Counsel cited a Supreme Court ruling where property transfer through bill adjustments constituted a sale. The court ruled in favor of the revenue, considering the property transfer in bill adjustments as a taxable sale.

In conclusion, the revision was partly allowed, with different outcomes for each issue raised.