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TMI Blog2013 (6) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices. It is not denied that the gas was drawn, and will thus be treated to be supplied, even if the extraction was unauthorised. - The price was not paid as the quantity of the supply was not admitted. Held that:- the dishonest extraction of the gas by tampering the meter, of the unmeasured supply would not prima facie fall within the definition of theft as the consent of GAIL, in supply of gas was not absent. The unauthorised extraction of gas by tampering with the meter would at best amount to criminal breach of trust. The raising of bills for supply of such unmeasured quantity of gas by tampering of meter will amount to the consent for such supply, under the contract. Additional Commissioner has not erred in law in extending th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of limitation. By Writ Petition No. 409 of 2011 the petitioner has prayed for a writ of mandamus or prohibition restraining and prohibiting the Deputy Commissioner (Assessment), Sector-11, Commercial Taxes, Agra from proceeding with re-assessment proceedings under Section 21 of the UP Trade Tax and for the assessment years 2004-05 and 2005-06 in pursuance to the notices dated 14.3.2011. It has also prayed for quashing the order dated 8.3.2011 passed by the Additional Commissioner, Grade-1, Commercial Tax for the same assessment years extending the period of limitation. 3. The GAIL supplies natural gas (a notified item) delivered to the buyers on the measurements at the Gas Measuring Station, located at the buyer's premises. The v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tampering, nor the delivery of unmeasured gas. They have not paid the price of either the supply of the gas, nor have admitted the gas to be drawn unauthorizedly by tampering of the meter. 7. In the arbitration proceedings in respect of two buyers namely M/s Pioneer Glass Works and M/s Advance Glass Works, the Arbitrator has given an award against the GAIL, holding that the charge of GAIL is not proved, and that these two buyers did not tamper with the installed meters. The arbitration proceedings in respect of other buyers are still pending at different stages. It is stated by Shri Bharat Ji Agrawal that GAIL has taken up the matter to challenge the award, against the two firms. 8. The GAIL paid tax in respect of customer, who had acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2005-2006, the petitioner is liable to be taxed and to be re-assessed under Section 21 of the Act. 10. Shri Bharat Ji Agrawqal submits that under Section 2 (h) of the UP Trade Tax Act the sale is defined:- " (h) 'Sale' with its grammatical variations and cognate expressions, means any transfer of property in goods (otherwise than by way of a mortgage, hypothecation, charge or pledge) for cash or deferred payment or other valuable consideration and includes-....." 11. Shri Agrawal submits that under Section 3 (1), which is the charging Section, the liability of tax is on the turnover of sales or purchase and the rates of tax are provided under Section 3-A. In order to become taxable, there has to be a complete transaction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Supreme Court in Commissioner of Sales Tax vs. Bhagwan Industries AIR 1973 SC 370 (para-9), to such effect. 14. In the present case, prima facie we find that under the 'Gas Sale Contract', the GAIL was supplying gas to the buyers. The gas was measured by the equipments installed at the gas measuring station maintained by GAIL at the buyer's premises. The GAIL alleges that the security of the meter installed at the premises of the buyers is exclusive responsibility of the buyer concerned. If the meter was found tampered, the gas drawn beyond the metered quantity can be treated as unauthorised extraction. The GAIL is aware of the quantities of the gas, which is alleged to be stolen by the buyers, and has raised the invoices. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when he intends to take dishonestly any movable property out of the possession of any person without that person's consent, or moves that property in order to such taking. In the present case the dishonest extraction of the gas by tampering the meter, of the unmeasured supply would not prima facie fall within the definition of theft as the consent of GAIL, in supply of gas was not absent. The unauthorised extraction of gas by tampering with the meter would at best amount to criminal breach of trust. The raising of bills for supply of such unmeasured quantity of gas by tampering of meter will amount to the consent for such supply, under the contract. 17. We do not find that the Additional Commissioner, Grade-I, Commercial Tax, Agra Zone, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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