9911796707
TMI Blog1997 (5) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... Silver Art Palace v. Commercial Taxes Officer, Anti-Evasion-I, Headquarters, Kar Bhawan, Jaipur (hereinafter referred to as the assessing authority ). The petitioner-firm is engaged in the business of sale of gem and jewellery, ivory, carpets and all types of handicrafts at Jaipur. It deals in the sale of these items to foreign tourists under Export Promotion Scheme against foreign exchange. This sale is made in the course of export and hence no tax is payable thereon. This was the position as is clear from the assessment order for the year 1979-80 relating to the period from November 1, 1978 to October 20, 1979. On September 2, 1987 the business premises of the petitioner-firm were surveyed by the Assistant Commercial Taxes Officer, Anti-Evasion, Jaipur, who submitted a report to the assessing authority that the sales of various items made by the petitioner-firm were local sales and not sales made in the course of export. Acting upon this report the assessing authority proceeded under section 12 of the Act and finally on February 28, 1983 framed the assessment order whereby the tax liability of the petitioner-firm was determined at Rs. 41,595.20 (tax), Rs. 66,145 (interest) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of export and for that matter not chargeable to tax. This contention did not find favour with the Tax Board on the ground that no actual export is said to have taken place. Nor did the Export Promotion Scheme contain a provision which evidenced actual exportation of the item purchased. It was clearly held by the honourable Supreme Court in Ben Gorm Nilgiri Plantations Co. v. Sales Tax Officer, Special Circle, Ernakulam [1964] 15 STC 753 (SC) at page 759, that to constitute a sale in the course of export there must be an intention on the part of both the buyer and seller to export; there may be an obligation to export; and there must be an actual export. Three conditions must be satisfied before it can be said that a particular sale is sale in the course of export. There may be a case of sale for export which is different from a case of sale in the course of export. There must be an integral connection or inextricable link between the sale and the export. Such connection or the link is not to be broken or interrupted. Keeping this principle in mind the Tax Board came to the conclusion that the sale of gems and jewellery was not a sale in the course of export. We see no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment was bound by the decision it had once taken. At page 40 of the judgment it concluded as hereunder: Although we are of the view that the transactions are not (in the course of) export exempt from tax yet keeping in view that the department has treated these transactions as export not liable to tax for two decades and the assessee bona fide followed the same and has not collected tax we direct that the past transactions would be governed by the view taken and acted upon by the department that such transactions are (in the course of) export not liable to tax. We make it clear that henceforth these transactions would be liable to tax as being sales within the State. 8.. We do not find ourselves in agreement with the view taken by the Tax Board that no liability for the payment of tax can be fastened on the petitioner-firm because of the fact that both the department and the petitioner-firm were labouring under a mistake of law that no tax was to be paid on the counter-sales of gem and jewellery. It has been found by the Tax Board as mentioned hereinabove that such counter-sales were not in the course of export. We have found ourselves in agreement with this view. Once t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration fees incorrectly assessed.-(1) If for any reason the whole or any part of the business of a dealer has escaped assessment to tax, or if the registration fee or exemption fee has escaped levy or has been assessed at too low a rate in any year, the assessing authority, may serve on the dealer liable to pay the tax in respect of such business or such registration fee or exemption fee a notice in the prescribed form and may proceed to assess or reassess the amount of the tax or levy the correct amount of registration fee or exemption fee from such dealer: Provided that if the Commissioner or Deputy Commissioner (Administration), Anti Evasion or a Deputy Commissioner (Administration) has reason to believe that whole or any part of the business of a dealer has escaped assessment to tax or has been under-assessed or has been assessed at too low a rate, he may at any time subject to the time-limit specified in sub-section (2), either direct the assessing authority to assess or reassess the amount of tax or himself proceed to assess or reassess the tax. Explanation.-Nothing in this section shall be deemed to prevent the assessing authority from making an assessment to the be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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