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TMI Blog1963 (2) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants could be assessed to tax under section 21 of the U.P. Sales Tax Act?" From the statement of the case it appears that the assessee carries on the business of the manufacture among other things of rectified and methylated spirit at Unnao. For the assessment year 1949-50, the assessee was assessed by Sri B.N. Srivastava, Sales Tax Officer, on the turver returned by the assessee. It may be mentioned that a figure of Rs. 34,000 and odd was shown by the assessee as having been paid to the Government as excise duty and vend fee under the U.P. Excise Act. This figure of Rs. 34,000 and odd was t included by the assessee in its turver. Subsequently Sri J.S, Mathur, Sales Tax Officer, issued a tice under section 21 of the Act to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought to be supported on the ground that the assessment could t legally have been made under section 21 of the Act. The learned Judge (Revisions) considered this plea raised by the assessee and rejected the same. Thereupon the assessee applied under section 11 of the Act for referring a case for the decision of the High Court on certain questions of law arising in the case. This application was allowed and the questions mentioned above have been referred to this Court. Sri A.K. Kirty, the learned counsel appearing for the assessee, has, at the very outset, stated that question . (1) is t happily worded. What was meant was that the amount paid by the assessee on behalf of the purchasers as excise duty and vend fee could t legally for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships of the Supreme Court adopted in the two cases cited, Sri Kirty urged that since the amount which was realised by the assessee from its cus- tomers as excise duty and vend fee was paid to the Government by it and was t allowed to be mixed up with its assets, that amount so realised from the customers at the time of the sale of the spirit could t legally form a part of the sale proceeds. We think that neither the dicta of the Supreme Court in the cases cited r the reasoning supports this contention of the learned counsel, rather they militate against the conclusions which the learned counsel asked us to arrive at on the facts of the present case. It would be seen that their Lordships of the Supreme Court in the above cited ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dded by the assessee to the price. It is difficult to agree with Sri Kirty that the transaction in the present case would be any different from the transaction which fell for con- sideration in the cases cited before the Supreme Court. The basis seems to be that whatever is realised at the time of the sale, even when added as a separate item to the price for any specific purpose, if it mingles with and mixes up with the capital and asset of the seller, then it can be included in his turver. It is clear to us that the stand taken by the assessee that it did t realise the amount representing the excise duty and vend fee as the price but merely as an agent of the customer for passing it on to the Government is untenable. It is t disputed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffers difficulty. As already held by this Court the language of section 21 of the U.P. Sales Tax Act is wide eugh to cover any case in which even by mistake, whether of fact or law, or by a mere omission the assessing authority does t assess the whole or a part of the turver in any particular year. For the application of section 21 it is t necessary that there should be any concealment on the part of the assessee or that any fresh material should be discovered before an assessment can be made. It was urged that since the assessee had already disclosed in its return the figure of Rs. 34,000 as the amount of excise duty and vend fee but had t included it in his turver and the assessing authority had t taxed it on that amount, there was concea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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