9911796707
TMI Blog1981 (6) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... over at Rs. 7,20,000. The assessee's appeal having failed he went up in revision. The Additional judge (Revisions), Varanasi, accepted the assessee's contention and held that since freight charges were paid by the principals directly, the same were not liable to be included in the sales of coal. As a result the disclosed turnover has been accepted. Aggrieved, the Commissioner has filed the present revision. Before taking up the contentions of the parties it would not be out of place to mention the modus operandi of the assessee's business. The assessee used to procure orders for supply of coal. He imported coal from the collieries which are situated outside Uttar Pradesh against form XXXI. The coal was brought by trucks engaged by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee by his counsel, Sri R.R. Agarwal, that the question whether inward freight directly paid by the purchaser can be included in the turnover of the dealer would depend on the terms of the agreement between the parties. If the obligation to pay freight is of the purchaser then it cannot form part of the sale price. According to the learned counsel an oral agreement can be spelt out in the present case from the fact that freight was paid by the purchaser directly to its carrier and secondly in the earlier year the accounts were accepted by the assessing authority itself when the modus operandi by the assessee was the same. On a careful consideration I am of the opinion that the contentions of the learned standing counsel should prevail. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 1974, to 28th May, 1975, by U.P. Act No. 11 of 1978. It would be seen that this definition of "turnover" consists of two limbs. The first limb is contained in the main clause itself while the second one is contained in the explanation. The exclusion clause contained in sub-clause (i) of explanation II aforesaid would be attracted only when this inclusive clause is invoked by the department. It would not be attracted if reliance is placed on the main clause according to which the "turnover" means the aggregate amount for which goods are supplied or distributed by way of sale or are sold. The definition of "sale price" as contained in section 2(p) of the Rajasthan Sales Tax Act, 1954, which is in similar terms had come up for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged". The exception carved out in this clause does not operate as an exception to the first part of the definition. It is confined only to the inclusive clause and takes out something which could otherwise be within the inclusive clause. In other words, the exclusion clause can be availed of by an assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of "sale price". In my opinion while interpreting the scope of the expression "turnover" as defined in section 2(i) of the Act these observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is imported by him against form XXXI and is brought by trucks engaged by him. The assessee issues the invoice at his depot. It is on his direction that the truck is unloaded at the business premises of the purchaser concerned. Another circumstance is that in the event of the purchaser refusing to take delivery, the coal is unloaded at the assessee's own depot and in respect thereof he includes the freight in the sale price itself. On these facts, in my opinion, the amount of inward freight directly paid by the purchaser to the truck owners would represent a part of the aggregate amount payable by him to the assessee and thus would be a part of the turnover liable to tax in the hands of the assessee. Reliance was also placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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