9911796707
TMI Blog1997 (12) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... Being aggrieved petitioners moved a revision application under section 36 of the Act before the Commissioner of Taxes read with rule 38 of the Rules disputing the liability of the petitioners to pay tax on the containers. The revisional authority considered the revision application and heard the learned counsel appearing on behalf of the dealer. The order of assessment was questioned on revision on the ground that since the packing materials were essential and customary for sale of goods by the firm having the value of such materials being very marginal in comparison with the value of the goods sold by the petitioners. The assessee pleaded that the containers were used as packing materials and those packing materials were not sold and therefore no sales tax was collected by the petitioners on the packing materials while selling the goods on the assessment year and in facts such packing materials were transferred without any consideration. The revisional authority while considering the grounds of the revision made the following observations: "..............It was also observed that the petitioner-dealer purchased the said non-taxable goods in lots and sold the non-taxable goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very cleverly at pre-rate value of the goods, as had been charged (in the instant case) per kg. which is not separated when the sealed containers were put into the weighing machine......" 3.. The revisional authority also upheld the levy of interest in aid of section 22 of the Act. Hence the writ application. 4.. Mr. Om Prakash Bhati, the learned counsel appearing on behalf of the petitioners/assessee assailed the legality and validity of the assessment. Mr. Bhati, the learned counsel for the petitioner, submitted that the taxing authority fell into serious error in assessing the containers used in sale of non-taxable goods on the face of section 2(34), sub-clause (d), Explanation 2 of the Act. Mr. Bhati, the learned counsel submitted that 1994 amendment could not be made applicable for the assessment year ending on March 21, 1994. The learned counsel further submitted that petitioners used gunny bags in respect of sale of sugar, cereals and pulses and tins in respect of edible and non-edible oils. The packing materials those were used were of negligible value and furthermore, such packing was essential as well as customary for purchase or sale of such goods. The Act itself exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of property in goods by any person for cash, deferred payment or other valuable consideration, and includes- (i) any transfer otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; ................. 2(34) 'sale price' means- (a) in respect of a sale falling under sub-clause (ii) of clause (33) the consideration received or receivable by the dealer in respect of any works contract executed or under execution by him as increased by the market price of any goods supplied or to be supplied to him free of cost or the excess of the market price over the price charged on any goods supplied or to be supplied to him at a concessional rate by the contractee or any other person for use, application or appropriation in the works contract. Explanation-For the purposes of this sub-clause, all contracts in relation to the same works, whether between the same or different persons, shall be deemed to be a single contract, and the person, on whom the Commissioner has served a notice of his intention so to treat him, shall be deemed to be the contractor and all the other persons shall be deemed to be sub-contractors of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such conditions and restrictions and (ii) any sum allowed as a cash discount according to ordinary trade practice. Explanation 1 envisioned that any tax or cess or duty, which is liable to be paid in respect of any goods before the buyer can obtain delivery and possession of such goods and all costs and expenses and charges incurred before the goods are put in deliverable state, shall notwithstanding any agreement, covenant or understanding that such tax, cess, duty, cash expenses or other charges be borne or paid by the buyer or any other person, be included in the sale price. Explanation 2 embodied that where any goods are purchased or packed or sold, packed in containers or other packing materials of value which is small in comparison with the value of such goods or such packing is essential or customary for the purchase or sale of such goods then notwithstanding any agreement to the contrary such container or other packing materials shall be deemed to have been purchased or sold with such goods and their value, whether charged separately or not, shall be included in the purchase or sale price of such goods. The fiction was introduced with a view to include the containers or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
