2022 (7) TMI 569 - HC - VAT and Sales Tax

Taxability - trade discount was a permissible deduction from the turnover or not - trade discount is includible in the sale price - whether the Tribunal was justified in holding that First Tax paid goods shall be taxed at more than one point in the same series of sale? - HELD THAT - It is pointed out that in the earlier returns filed by the Petitioner deduction of trade discount from the gross turnover was claimed and was allowed by the STO. However, the Tribunal has the impugned order concluded that the Petitioner did not disclose the trade discount in the monthly returns and therefore, disallowed it. It was contended on behalf of the Petitioner that even if the trade discount was not specifically mentioned in the definition of sale price it would still be allowable as a deduction. This Court notes that in M/S. CEAT LTD. VERSUS COMNR. OF SALES TAX 2019 (8) TMI 1828 - ORISSA HIGH COURT , a Division Bench of this Court addressed this very issue and allowed an identical plea that trade discount would be deductible from the gross taxable turnover by referring to several decisions including the one delivered by the Andhra Pradesh High Court in Cynamid India Limited v. Commissioner of Sales Taxes 2001 (12) TMI 841 - ANDHRA PRADESH HIGH COURT . It was further held that as long as revised returns were filed, the claim could not be rejected on the ground that the deduction was not disclosed in the original return. Insisting on the Petitioner paying sale tax on subsequent sales after having paid sales tax at the first point - HELD THAT - Counsel for the Petitioner relies on the assessment orders passed in the Petitioner s own case for the subsequent period 2004-05 as well as the earlier period 2001-02 and 2002-03 as well as the corresponding appellate orders where it has been held that the Petitioner would not be liable to pay sales tax on the subsequent sales even if the sale price is higher than the purchase price at the first point of sale. The questions framed are answered in the negative i.e. in favour of the Petitioner Assessee and against the Department - the revision petition is disposed of.

Summary

Issues involved:
1. Whether trade discount is allowable as a deduction from the taxable turnover?
2. Whether sales tax on subsequent sales is payable after paying sales tax at the first point of sale?

Analysis:

Issue 1: Trade Discount as Deduction
The petitioner, engaged in selling medicines in Odisha, claimed trade discount as a deduction from the taxable turnover. The Tribunal initially disallowed this deduction, stating that the petitioner did not disclose the trade discount in the monthly returns. However, the petitioner argued that trade discount should be allowed as a deduction, citing legal precedents such as Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Ernakulam v. Motor Industries Company and Orient Paper Mills Ltd. v. State of Orissa. The High Court referred to a previous case, CEAT Ltd. v. Commissioner of Sales Tax, where a Division Bench allowed a similar plea, stating that trade discount is deductible from the taxable turnover. The High Court upheld this argument, emphasizing that as long as revised returns were filed, the claim for deduction could not be rejected based on the original return not disclosing the deduction.

Issue 2: Sales Tax on Subsequent Sales
The second issue pertained to the imposition of sales tax on subsequent sales after already paying sales tax at the first point of sale. The petitioner referred to assessment and appellate orders from previous periods, where it was held that sales tax on subsequent sales was not applicable even if the sale price exceeded the purchase price at the first point of sale. Relying on these precedents, the High Court ruled in favor of the petitioner, setting aside the Tribunal's decision and concluding that the petitioner was not liable to pay sales tax on subsequent sales after already paying tax at the first point.

In conclusion, the High Court allowed the petitioner's revision petition, answering both framed questions in favor of the petitioner and against the Department. The Tribunal's decision was set aside, and an urgent certified copy of the order was directed to be issued as per Rules.