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TMI Blog1986 (9) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Central) as well as market committee cess. The provisions made by these firms stand as follows- Provisions for Sales-tax . State Marketing commn. cess Total . Rs. Rs. Rs. 1. M/s Kamala Saraswati Traders Rajam 9,119 22,609 31,727 2. M/s. Sri Saraswati Traders 16,525 31,481 48,006 3. M/s. Balaji Trades 33,357 35,098 . Central Sales-tax 980 Total 69,363 It may be stated that the appeals were all dismissed by the CIT (A) and the disallowance made by the ITO were all confirmed. The CIT (A) held that the disallowance was justified in view of the catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he three years which we are concerned with in these appeals ended by 31st March, 1984. Therefore, the prime argument that is advanced on behalf of the assessee is that s. 43B should not be applied to a previous year prior to 1st April, 1984 should be accepted. Admittedly these firms were maintaining their accounts on mercantile basis. The second argument that is advanced before us is that why the Agricultural Marketing Committee Cess collects fees from them. In this connection, our attention is invited to s. 12 of Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966 and it is as follows. "Levy of fees by the market committees: (1) The market committee shall levy fees on any notified agricultural produce, livestock or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected then it would be called a tax and not a 'fee'. Thus, a well marked distinction existed between a tax and a market fee. Shri Ramakrishnaiah brought to our notice that the provisions of s. 43B speak of either a tax or a duty or under any law for the time being in force. He argued that the market fees payable under s. 12 of the Market Act, 1966 does not fall either under the category 'tax' or 'duty'. Sec. 43B being part of a tax law which is expropriatory in character should be strictly construed and unless there are clear words authorising the State of levy the tax. Tax should not be collected by mere implication. Therefore, he argued that as there is well marked distinction between the tax and duty on one hand and the market fee wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts on mercantile basis. It is argued that the sales-tax thus collected does not form part of the receipts of the assessee and hence in case the provisions are not allowable under s. 43-B, they should not be considered as part of the receipts of the assessee and in support of this proposition, the ld. counsel relied upon the following decisions of the Andhra Pradesh High Court (i) Addl. CIT vs. T. Nagireddy Co. (1976) 105 ITR 669 (AP) (ii) Buddala China Venkata Rao vs. CIT (1978) 112 ITR 58 (AP) (iii) CIT vs. Amabati Venkanna Co. (1985) 153 ITR 643 (AP) (iv) CIT vs. Devatha Chandraiah Sons (1985) 154 ITR 893 (AP) The ld. Deptl. Representative relied upon the orders of the lower authorities. After considering the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay sales-tax is not yet finally disposed of by the Supreme Court in (1978) 112 ITR 58 (AP), (1985) 153 ITR 643 (AP) as well as (1985) 154 ITR 893 (AP) were distinguishable inasmuch as in first of the two cases the sales-tax was collected from the customers on the turnover relating to the sale of jaggery but it was not remitted to the Govt. In such a case, it was held that the sales-tax collected does not form part of the trading receipts of the assessee. In the last of the cases, the assessee-firm acted as a commission agent on behalf of the agriculturists and sold their produce. It collected sales-tax from the purchasers and paid it to the Govt. Part of the sales-tax was refunded. On such refund, the assessee made suitable entries and als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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