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TMI Blog1998 (11) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of sales tax as per the provisions of the Act. On the recommendation of the Oil Prices Committee set un by the Government of India, Resolution No. P-20028/3/77-PPD (Vol. II) dated December 16, 1977 (annexure I) was adopted by the Government which requires a dealer to sell its products at the prices fixed by the Central Government and the prices so fixed by the Central Government includes surcharge to be collected from the buyer and deposited to the oil pool account. A dealer, therefore, has no alternative but to sell the products at the prices so fixed inclusive of' surcharge and transfer the surcharge to the said oil pool account. The said amount Of Surcharge is not intended to augment the coffers of the petitioner-company as it is specifically earmarked for the pool account and the petitioner-company is entitled only to retain the basic price, the sales tax paid at the time of purchase of the products in Assam from B.R.P.L. and the profit margin specified by the Central Government. According to the petitioner-company, the surcharge thus collected by a registered dealer on behalf of the oil pool committee cannot be computed to form part of the "sale price" so as to treat it as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly sold the petroleum products to the buyers at a price inclusive of permissible profit margin and the surcharge and thus the resale-price exceeded 40 per cent of' the original purchase-price. Apparently, the resale price became taxable as provided in section 8 and rule 12 referred to above. In order to further appreciate the situation, we may avert to the definition of sale price incorporated in sub-section (34) of section 2 of the Act. For the purpose of this case, the relevant part of the said sub-section is reproduced below: "(34) 'sale price' means-- (a) to (c) .................... (d) in respect of a sale under any other sub-clause of clause (33), the amount received or receivable by a dealer as valuable consideration for the sale of goods including any sum charged, whether stated separately or not, for anything done by the dealer in respect of the goods at the time of or before delivery thereof or undertaken to be done after the delivery whether under the contract of sale or under a separate contract but excluding;............. (i) the cost of outward freight, delivery, or installation or interest when such cost or interest is separately charged, subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations incorporated in the definition of "sale price". But, this submission of Dr. Saraf, learned counsel, in my opinion, runs counter to the very object of section 2(34)(d) of the Act. The language used in this section is clear and leaves no room for interpretation of the intention of the Legislature. The words "received or receivable by a dealer" cannot be read in isolation of the rest of the sentence which when read as a whole with emphasis on the words "including any sum charged" makes it abundantly clear that the sale price as defined will embrace within its fold the surcharge collected by the dealer from a buyer before delivery of goods. The clause "including any sum charged" cannot be given a narrow meaning to exclude the "surcharge". This would mean adding to the exemptions made specifically in the statute itself This is a role to be played by the Legislature and not the court. I am, therefore, unable to endorse the submission advanced by Dr. Saraf. 8.. In support of the above view, we have the decision of the Supreme Court in Assessing Authority-cum-Excise and Taxation Officer, Gurgaon v. East India Cotton Mfg. Co. Ltd. [1981] 48 STC 239, where it is observed that a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied. 12.. In the State of Mysore v. Mysore Spinning and Manufacturing Co. Ltd. [1960] 11 STC 734, the Supreme Court held that the amount received by a registered dealer by way of deposits on the express understanding that the money would be refunded to the constituents if the assessee was held not liable to include the relevant sales in its taxable turnover was not a collection by way of tax under section 11(2) of the Mysore Sales Tax Act, 1948. According to the Supreme Court, when once the tax authorities determine that the proceeds of the sales were not to be included in the taxable turnover of the assessee, the beneficial ownership vested in the depositors and the assessee ceased to have any right to continue to hold the money. For this reason, the said amount collected by the assessee by way of deposit was kept out of the purview of taxation. In the instant case, the amount of surcharge collected by the dealer was not by way of deposit from the buyer and, in fact, it has been passed over to the oil pool account. Therefore, this decision cannot be applied for obvious difference in the nature of transaction. 13.. The decision rendered altogether on a different context by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Central Government and not the High Court. To counter this, Dr. Saraf referred to a decision of the Division Bench of this High Court in Alta r Rahman v. Union of India (1986) 1 GLR 14 wherein the High Court held that the remedy provided by way of appeal in the Estate Duty Act, 1953 was not an alternative efficacious remedy and the writ petition was maintainable, In the instant case, the notice dated March 28, 1996 (annexure IV) was issued directing the petitioner to show cause as to why the penalty under section 23(g) of the Assam General Sales Tax Act, 1993 would not be imposed which, however, has been assailed by Dr. Saraf as unwarranted on the ground that the process of assessment was not complete and, as such, the notice was premature. But the impugned notice unfurls a different profile and shows that it was on failure of the petitioner-company to comply with the requirements of the notice issued under section 44(1), the assessing officer had to issue the same asking the assessee to show cause as to why necessary penal action as provided under section 23(g) of the Act would not be imposed. In fact, the notice does not propose any penalty but affords an opportunity to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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