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TMI Blog1973 (11) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the validity of those provisions. It is, therefore, necessary to examine, in the first instance, the relevant provisions of the Act and ascertain the true meaning and effect of the same. 2.. Section 5(1) of the Act provides that every dealer shall pay for each year tax on his taxable turnover at the prescribed rate. Clause (a) of sub-section (3) of section 5 provides that notwithstanding anything contained in sub-section (1), in the case of sale of goods mentioned in the Second Schedule, single point tax is leviable at sale point. Clause (b) of sub-section (3) of section 5 provides that in the case of purchase of the goods specified in the Third Schedule, single point tax shall be levied at the purchase point. Sub-section (4) of section 5 provides that in respect of sale or purchase of declared goods mentioned in the Fourth Schedule tax shall be levied either at the sale or purchase point as specified in the said schedule. The tax levied under sub-section (4) of section 5 is also single point tax. Section 8 of the Act provides for exemption of tax. It provides that no tax shall be levied on the sale of goods specified in the Fifth Schedule, subject to the conditions an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale or purchase, as the case may be, of such goods had already been subjected to tax under this Act." 3.. It was contended by the learned counsel for the petitioners that section 6 which purports to levy tax under certain circumstances is a charging section. Sri M.P. Chandrakantaraj Urs, learned Government Advocate, also took the same stand. It is clear from the plain language of section 6 that it is a charging provision. Certain conditions are required to be satisfied before the charge under section 6 is attracted. The section opens with the words "subject to the provisions of sub-section (5) of section 5". Subsection (5) of section 5 provides that a dealer whose total turnover in any year is less than twenty-five thousand rupees shall not be liable to pay tax for that year. It further provides that notwithstanding anything contained in clause (a) of sub-section (5) of section 5, every casual trader in any of the goods specified in the Third Schedule or the Fourth Schedule shall be liable to pay tax at the rate specified in the Act on his taxable turnover of sales or purchases in each year whatever his total turnover during the year may be. The conditions to be satisfied for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1) of section 6-A does not place the burden of proving the ingredients prescribed by the Act to justify levy of tax on the assessee. The burden of proving those ingredients is clearly on the taxing authority. Sri Chandrakantaraj Urs did not dispute this proposition. As the Supreme Court has in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co.[1967] 20 S.T.C. 520 (S.C.). laid down that in all cases of tax the burden of proving the necessary ingredients laid down by law to justify taxation is upon the taxing authority further discussion on this question has become unnecessary. The burden of establishing the ingredients of section 6 must, therefore, be held to lie on the taxing authority. 6.. But, the onus of proving special facts exclusively within the knowledge of the assessee to claim benefit for himself on the basis of proof of those facts, is undoubtedly on the assessee in view of the principles contained in section 106 of the Indian Evidence Act. As I am not examining the facts in these cases, I consider it unnecessary to catalogue the special facts exclusively within the knowledge of the assessee, the burden of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings showing that all the ingredients attracting tax liability under section 6 have been established. 9.. Hence Writ Petition No. 2041 of 1972 is allowed and the impugned order of assessment made by the Commercial Tax Officer dated 27th June, 1972, is quashed, reserving liberty to the Commercial Tax Officer to make fresh assessment order in accordance with law and in the light of the enunciation of law made in this judgment, after issuing an appropriate proposition notice to the assessee. 10.. In Writ Petitions Nos. 2282, 2283, 2292, 2293, 2294, 3234, 3235, 3241, 3242 of 1972, 2023, 2362 of 1971, 64, 705 and 2944 of 1972, the petitioners have challenged the assessment orders made by the assessing authority after issuing the necessary proposition notice to the petitioners. The petitioners have a statutory remedy available to them of preferring appeals. The petitioners have approached this court for relief, instead of preferring appeals, as they challenged the validity of sections 6 and 6-A of the Act, which challenge they could not maintain before the appellate authority who functions under the Act. As challenge to the validity of section 6-A(1) failed and the petitioners a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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