9911796707
TMI Blog1995 (2) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... eciding the controversy before us are very brief. The assessee-company is a manufacturer and seller of PVC pipes, PVC compounds and reseller of rigid pipes, sleevings, etc. It is registered as a dealer under the Bombay Sales Tax Act, 1959 ("the Act") in respect of the above business. In its assessment for the period October 1, 1984 to September 30, 1985, the Assistant Commissioner of Sales Tax (Assessment) levied purchase tax under section 13 of the Act at the rate of 12 per cent on the value of a car purchased by the assessee on August 30, 1985, for a sum of Rs. 83,917, and determined the purchase tax payable thereon at Rs. 10,070. The above tax was levied on the basis that the purchase of the above car was made by the assessee from one Mr. Pareshkumar, who was not a registered dealer under the Act. Aggrieved by the above levy of purchase tax, the assessee appealed to the Deputy Commissioner of Sales Tax ("Deputy Commissioner"). Before the Deputy Commissioner, it was contended by the assessee that it had paid the consideration for the purchase of the car directly to M/s. Bombay Cycle and Motor Agency, who was a registered dealer and the insurance policy in respect of the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E to the Act and hence taxable under this Act, and such purchase is made from a person who is not a registered dealer. If these conditions are fulfilled, section 13 would be attracted and purchase tax would become leviable unless the goods so purchased are resold by the purchasing dealer. The counsel for the assessee, on the other hand submits that section 13 would not apply to purchases made by a dealer of taxable goods from unregistered dealer till such goods remain with the purchasing dealer and/or the possibility of resale thereof is ruled out. The other contention of the learned counsel for the assessee is that section 13 would be attracted only in case of purchases of such goods only in respect of which he is a dealer. The submission, in other words, is that in case of a dealer like the assessee in the present case, who does not carry on business of purchase and sale of the cars, no purchase tax can be levied under section 13 in respect of purchase of the car. Further submission is that section 13 applies only to purchases made from a "dealer" who is unregistered or not registered and not to purchase from any and every person who is not even a "dealer". 4.. We have carefull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of section 2(11) of the Act will not fall within the purview of section 13 and no purchase tax would be leviable in respect of such purchases. This opinion of ours gets full support from the definitions of "dealer" and "registered dealer" contained in clauses (11) and (25) of section 2 of the Act. "Dealer", as defined in clause (11) of section 2 of the Act means: "any person who whether for commission, remuneration or otherwise carries on the business of buying or selling goods in the State, and includes (the Central Government or any State Government) which carries on such business, and also any society, club or other association of persons which buys goods from or sells goods to its members." The only exception is an agriculturist who sells exclusively agricultural produce grown on land cultivated by him personally. It is obvious from the above definition of "dealer" that only such "person" is a dealer who carries on the business of buying or selling goods in the State. "Business" has been defined in clause (5A) of section 2 to include any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture and any transaction in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise. However, keeping in view the nature, scheme and object of section 13 and the fact that it is the assessee only who would have full knowledge about the person from whom he has purchased the goods, the onus of proving that the person from whom the purchase in question had been made was not a "dealer" will always be on the assessee. Because, in such a case it is not only difficult but rather impossible for the Revenue to establish that the person concerned from whom the assessee had purchased the goods was a dealer in those goods though not registered under the Act. If the assessee fails to satisfy the assessing authority that the person from whom the purchase in question had been made was not a dealer within the meaning of section 2(11) of the Act, purchase tax would be leviable under section 13 on the purchases made by him from such person. In that event, the assessing officer will be justified in drawing an inference that the purchase in question was effected from a person who was a dealer but unregistered or not registered. 6.. We have also considered the submission of the learned counsel for the assessee that section 13 would be attracted only in respect of purchases mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax under section 3 of the Act because he does not carry on the business of selling and supplying cars. He is, therefore, not a dealer in respect of purchase of car. Secondly, the person namely, Mr. Pareshkumar, from whom the car had been purchased by the assessee, admittedly was not a dealer within the meaning of section 2(11) of the Act. The car was in fact purchased by the said person from a registered dealer, namely, M/s. Bombay Cycle and Motor Agency and thereafter sold by him to the assessee. There is no dispute about the fact that Pareshkumar was not a dealer within the meaning of section 2(11) of the Act and he was not carrying on business of selling or supplying cars. Under the circumstances, section 13 of the Act would not be attracted to the purchase in question and no purchase tax can be levied on the assessee under the said section on the purchase value of the car. We are, therefore, of the opinion that the Tribunal was justified in holding that no purchase tax was leviable under section 13 of the Act on the purchase of the car in question though on grounds different from those given by the Tribunal. 8. We have carefully perused the questions referred to us by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
