9911796707
TMI Blog1971 (1) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... eds. The controversy, therefore, relates to this part of the assessment and demand of additional purchase tax. It may be stated here that the assessment of the firm admittedly was as first purchaser under section 3-D of the U.P. Sales Tax Act. The said section provides for levy of purchase tax on first purchases only of goods which may be notified by the Government under that section. In the explanations contained in sub-section (1) and also sub-section (2) of the section there are certain provisions intended to lay down as to when a purchaser will be regarded as the first purchaser and when he should not be regarded as the first purchaser. There is then sub-section (7) which reads: "(7) Unless the dealer proves otherwise to the satisfaction of the assessing authority, every purchase by or through a dealer shall, for the purposes of sub-section (1), be presumed to be the first purchase by such dealer and every sale through a dealer shall, for the purposes of sub-section (2), be presumed to be sale to a first purchaser." It will appear that sub-section (7) aforesaid lays down a rule of evidence to the effect that the burden of proving that a purchaser is a subsequent and not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchases of the value of Rs. 10,79,000 and odd. He stated that the assessee had given the names of the registered dealers from whom the purchases were claimed to have been made and on verification being sought for from the Sales Tax Officer, Sector V, he in his letter of 23rd February, 1970, did not make verification about 14 dealers and stated that the liability for tax was of the assessee-firm. It was also stated that because the said dealers had got the purchases made in their Arhat. On this fact being brought to the notice of the assessee, the assessee agreed to pay the tax on the said sum of Rs. 10,79,659.94. In the counter-affidavit filed on behalf of the opposite parties who are the State of Uttar Pradesh and the Sales Tax Officer, Sector II, Kanpur, stress has been laid on paragraph 4 to the effect that the assessee-firm admitted before the Sales Tax Officer liability to pay purchase tax on purchases made from the registered dealers for Rs. 10,79,659.94 of oil-seeds and an extract has been given from the alleged statement made on behalf of the assessee. In the rejoinder affidavit it has been stated that the liability was really not admitted and the word "Nahin" was omi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs and odd arising from the purchase of oil-seeds from the assessee-firm has been dealt with by the Sales Tax Officer in two parts. One part relates to purchases of the value of rupees ten lacs and odd and the other to the purchases of the value of rupees twenty-seven lacs and odd. About the purchases of the value of Rs. 27 lacs and odd a separate finding has been given that the purchases are first purchases because they were made not from registered dealers but through commission agents. Regarding the purchases of the value of rupees ten lacs and odd he gave a categorical finding in the first instance that the assessee had failed to discharge the burden of proof laid on him under section 3-D(7) by failing to show that the purchases were of goods on which purchase tax had been paid. His second discussion in regard to this item is not very intelligible. What appears from the discussion is that verification was asked for from the Sales Tax Officer, Sector V, and in the reply no verification was made in respect of 14 out of 15 dealers who had given out that the liability was of the assessee himself. It seems that the verification sought for was whether purchase tax had been paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchases of which he is sought to be taxed are not first purchases can only extend to proving that the purchases are not first purchases within the meaning given to first purchases in sub-sections (1) and (2) of section 3-D. If any rule lays down any additional condition not coming within the ambit of sub-sections (1) and (2) of section 3-D the rule would obviously be outside the rule-making power of the State Government. Clause (d) of rule 44-A requires exclusion in determining the net turnover all amounts for which goods are purchased by one registered dealer from another registered dealer. So far as this is concerned it is only in accordance with the provisions in section 3-D for levying purchase tax on first purchases only. But this provision in clause (d) aforesaid is made subject to a condition by adding the words "provided tax under section 3-D has already been paid on such goods". Learned counsel for the petitioners has firstly invited our attention to the difficulty which this proviso places upon the assessee as the assessee may not be able to prove, at least in the case of several successive purchases before the purchase made by him, as to whether tax has already be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
