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TMI Blog1994 (4) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... , "DGS D" in short, the applicant supplied goods to the DGS D. A part of the goods valued at Rs. 6,505.75 was delivered after the expiry of due date and the said DGS D made risk purchase after cancellation of the part of goods valued at Rs. 6,505.75 and made less payment of the bills for the said amount and a credit note was issued to that effect. The DGS D never purchased the said goods for the value of Rs. 6,505.75 nor the applicant sold those goods to the DGS D. Declaration forms covering the purchase excepting Rs. 6,505.75 were issued by the DGS D in order to get exemption from payment of sales tax under section 5(2)(a)(ii) of the Act of 1941 and the applicant claimed deduction accordingly. 3.. The applicant had appointed Messrs. Auto Marketing Corporation of 8/1, Lalbazar Street, Calcutta-7, as the selling agent for distribution of goods manufactured by the applicant under an agreement dated April 13, 1966. In terms of the said agreement the applicant allowed a trade discount by way of commission on the catalogue price at 50 per cent prior to 1972 and 49 per cent in 1972. 4.. The applicant has received a notice dated November 5, 1973, under section 14(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order on December 23, 1976. The applicant preferred an appeal before the Assistant Commissioner, respondent No. 2. By an order dated February 12, 1980 respondent No. 2 allowed the applicant's claim of Rs. 3,502 on account of expenditure incurred for extra structure of the factory which was reimbursed by the landlord and also partially allowed a claim of Rs. 273.25 out of Rs. 6,505.75 on account of short supply of goods and less payment of bills by the DGS D. As regards the trade discount of 49 per cent allowed to M/s. Auto Marketing Corporation, respondent No. 2 enhanced the trade discount to 30 per cent from 10 per cent allowed by respondent No. 3. The Assistant Commissioner has disallowed the applicant's claim of Rs. 17,325 in respect of declaration form No. D-2/027524 and also the other claim of Rs. 20,625.30. The applicant went in revision before the Commercial Taxes Tribunal, respondent No. 1, against the impugned order dated February 12, 1980 passed by respondent No. 2, the Assistant Commissioner. By an order dated May 4, 1982, the Commercial Taxes Tribunal, respondent No. 1, deleted only the penalty of Rs. 25 for late submission of return, but otherwise made no inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d June 28, 1983, of the seized documents passed by respondent No. 6, Additional Commissioner, Commercial Taxes, Bureau of Investigation. 7.. The respondents by an affidavit-in-opposition have contested the case. Their case, in short, is that the Commercial Tax Officer disallowed the claim of Rs. 6,505.75 on the ground of delay of six months in returning the goods. The Assistant Commissioner on appeal allowed a claim of Rs. 273.25 which he found admissible. The balance amount of Rs. 6,232.50 was not allowed by the Assistant Commissioner and the disallowance was upheld by the Commercial Taxes Tribunal. The said amount of Rs. 6,232.50 cannot form part of the sale price within the meaning of its definition. The agency agreement between the applicant and M/s. Auto Marketing Corporation was never produced at any stage and so the Commercial Tax Officer rightly disallowed the claim and only allowed discount at the rate of 10 per cent. The allowance of discount was raised by the Assistant Commissioner to 30 per cent. In the absence of agreement of discount at the rate of 49 per cent the order of the Assistant Commissioner confirmed by the Commercial Taxes Tribunal cannot be said to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no material on record in support of the claim for deduction of the said amount. Mr. Roy Chowdhury has seriously challenged the retention of the seized books of accounts and other documents beyond the statutory period and citing a decision reported in [1984] 145 ITR 477 (SC) (Commissioner of Income-tax v. Oriental Rubber Works) has contended that it was incumbent upon the Bureau of Investigation and also respondents Nos. 6 and 7, being Additional Commissioner of Commercial Taxes, Bureau of Investigation and Inspector, Bureau of Investigation respectively, to communicate to the applicant the approval of retention beyond June 28, 1984 and the reasons recorded for obtaining sanction for retention beyond June 28, 1984. 10.. Mr. T.N. De, learned State Representative, drew our attention to paragraph 10 (towards the end) of the application wherein the applicant has stated that after the rejection of the review petition the applicant filed a reference application before respondent No. 1 which is still pending. Mr. De has contended that the applicant having preferred a reference against the order of review dated July 7, 1983 passed by respondent No. 1, he cannot pursue the present applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application the applicant has stated that a part of the goods valued at Rs. 6,505.75 was delivered after due date and as a result the DGS D made risk purchase after cancellation of the said part of the goods valued at Rs. 6,505.75 and made less payment on the bills to the extent of Rs. 6,505.75 and a credit note was issued to that effect. In paragraph 7 of their affidavit-in-opposition the respondents have traversed the applicant's case in paragraph 3. Beyond stating that the learned Commercial Tax Officer disallowed the claim on the ground of goods having been returned after a lapse of six months, nothing has been stated by the respondents regarding sale or sale price. Respondent No. 3 disallowed the claim on the ground that the goods have been returned after six months from the date of receipt. Respondent No. 2 found that the purchasing Government department actually made less payment to the extent of Rs. 6,232.50, but the sales related to bills of previous years. He has allowed a claim of deduction to the extent of Rs. 273.25 for a bill made on Maharashtra State Road Transport Corporation, Bombay. It is to be noted that the sum of Rs. 273.25 together with Rs. 6,232.50 make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of deduction for the entire amount of Rs. 6,505.75. 13.. The next point urged by Mr. Roy Chowdhury, learned Advocate for the applicant, is that the applicant in terms of an agreement with M/s. Auto Marketing Corporation allowed a discount to the extent of 49 per cent on the catalogue price, but the respondent No. 3 allowed only 10 per cent and in appeal respondent No. 2 raised the discount to 30 per cent. Mr. Roy Chowdhury has cited a decision reported in [1980] 45 STC 251 (SC) (Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Aluminium Industries Ltd.) and has contended that the discount allowed by the dealer cannot be included in the taxable turnover of the assessee. Mr. T.N. De, learned State Representative, has contended that on a consideration of the materials on record the respondent No. 2 raised the discount to 30 per cent and this being a finding of fact cannot be interfered with. The applicant's allegation that the agreement in connection with the discount was produced before the Commercial Tax Officer, Assistant Commissioner and the Commercial Taxes Tribunal, has been denied by the respondents. In paragraph 20 of their affidavit-in-opposition the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 49 per cent beyond justification. It, therefore, appears to us that on a consideration of the facts and materials before him the Assistant Commissioner allowed 30 per cent trade discount. This finding was not disturbed by the Commercial Taxes Tribunal. The decision reported in [1980] 45 STC 251 (SC) (Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Aluminium Industries Ltd.) cited by the applicant's learned Advocate, Mr. A.K. Roy Chowdhury, is not attracted in the present case as discount has been allowed. What is in dispute is the rate of discount. The rate of discount having been allowed at 30 per cent on a consideration of the facts and materials before the appellate authority as well as the revisional authority and the appreciation of those facts and materials being not impermissible or perverse, we are not inclined to disturb the finding based on the facts and materials on record. We are, therefore, of opinion that the claim of the applicant for discount at the rate of 49 per cent cannot be sustained. 14.. With regard to the applicant's claim of deduction of Rs. 17,325 under section 5(2)(a)(ii) of the Act of 1941 in connection with declaration form being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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