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TMI Blog2014 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... in the return of income, neither even the credit notes were entered in the books of accounts, nor were shown in the return of sales tax - the penalty is leviable. Decided against assessee. - S.B. Sales Tax Revision No. 48 OF 2006 - - - Dated:- 26-11-2013 - J.K. Ranka, J. For the Appellant : Alkesh Sharma For the Respondent : R.B. Mathur ORDER:- This instant revision petition is directed against the order of Rajasthan Tax Board (for short Tax Board) dated 15.12.2005 passed in Appeal No.1354/2003/Kota. 2. The said appeal was admitted by this Court on 5.5.2006 on following questions of law: "(i) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in opining that receiving 82 old Rajasthan Sales Tax paid television sets in exchange of new Rajasthan Sales Tax paid Akai television sets receiving only differential amount as per scheme were the purchases made by the petitioner from the customers? (ii) Whether under the facts and circumstances of the present case the Hon'ble Rajasthan Tax Board is correct in holding that the transaction of exchange of the old television sets with the new television sets and onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered in the books of accounts of the petitioner? (viii) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in upholding the levy of interest of Rs. 44,700 which was levied by the assessing authority while passing the impugned assessment order dated 30.9.1999 i.e. for a period anterior to the passing of the said assessment order? (ix) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in opining that no documentary evidence was produced by the petitioner in respect of initial purchases of 82 Rajasthan Sales Tax paid television sets when in fact, the entire purchase vouchers of the customers have been produced/presented for verification before both the lower authorities?" 3. The brief facts emerging on the face of record are that survey operation was carried out in the business premises of the petitioner on 23.9.1996. It was noticed by the assessing officer that the petitioner was going on with a scheme under which in lieu of old television sets, the petitioner was providing new "Akai" television sets. During the course of survey, it was noticed by the assessing officer that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late authorities, no evidence was led about tax having been paid on the alleged 82 TV sets (old), which were said to have been exchanged by the assessee with the customers. Ultimately, the appeal was dismissed. 6. Hence, this revision petition. 7. Shri Alkesh Sharma, learned counsel for the petitioner submitted that the petitioner is distributor of M/s Baron International Ltd. and as per their directives, a scheme was launched, in exchange of old TV sets with new one and to boost the turn over of the petitioner. This scheme was in vogue from 17th July, 1996 to 31st August, 1996. He further submitted that it is not a sale or purchase rather it is an exchange or barter and it does not come within the definition of section 2(38) of the 'sale' defined under the Rajasthan Sales Tax Act, 1994. He further submitted that there was no consideration and only differential amount was taken and by no stretch of imagination, it can be said that it is a sale or purchase. It is further submitted that there was no necessity of proving that old TV sets were tax paid as whenever the original purchaser purchased those TV, it was certainly tax paid. He further explained that if any person purchases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the theory of the petitioner is accepted then possibly almost in all cases like this, the claim from the dealer would be not only in the present case, but also in other cases. He further submitted that exchange offers are there but due taxes have to be paid. He submitted that not only during the course of survey, but even later on adequate opportunity was granted but neither any evidence about the tax having been paid on such purchase of exchange/barter was given nor even the books were produced even at subsequent stage. He further submitted that there was clear cut intention of the petitioner to hide this transaction and only because of survey, it came to light otherwise, the transaction would not have come to light. He further submitted that it is a clear cut finding of fact by the Tax Board about the entire transaction. He further submitted that all the authorities have repeatedly held against the assessee. He further submitted that section 11 of the Act clearly proves about the levy of purchase tax and further that the tax was correctly levied. 10. In so far as penalty is concerned, it is submitted that the entire transaction was not recorded in the books of accounts n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply is for cash, deferred payment or other valuable consideration; and such transfer, delivery or supply shall be deemed to be a sale and the word "purchase" or "buy" shall be construed accordingly; Explanation I. Notwithstanding anything contained in this Act, where any goods are sold in packing, the packing material in such case shall be deemed to have been sold with the goods, unless otherwise proved by the dealer. Explanation II. A sale or purchase shall be deemed to take place inside the State- (a) in a case falling under sub-clause (ii), if the goods are in the State at the time of their use, application or incorporation in the execution of a works contract, not with standing that the agreement for the works contract has been wholly or in part entered into outside the State or that the goods have been wholly or in part moved from outside the State; and (b) in a case falling under sub-clause (iv), if the goods are used by the lessee within the State, whether or not for a specified period, notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return furnished by him or has deliberately furnished inaccurate particulars therein or has concealed any transaction of sale or purchase from his accounts, registers and documents required to be maintained under this Act or has avoided or evaded tax in any other manner, the assessing authority may direct that such dealer shall pay by way of penalty, in addition to the tax payable by him under law, a sum equal to double the amount of tax avoided or evaded." 15. On perusal of the above, it makes it clear that in so far as sale is concerned, it mentions that every transfer of property in goods by one person to another for consideration would mean sale so also in view of the extended definition. The transaction, which we are considering in the instant case, in my view, is certainly sale as the assessee was a dealer of Akai TV, has provided new TV sets in lieu of the old TV sets. Therefore, even exchange/barter, in my view, will fall within the definition of sale/purchase as defined under the Act. 16. In so far as Section 11 is concerned, it is clear that had the assessee purchased goods, which were exempted or had the assessee proved that the initial purchaser, who had come with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer to dealer in discharge of its warranty obligations to customers has rightly been held not taxable under the Sales Tax Act. However, the facts are entirely distinguishable inasmuch as in the present case, there is no case of warranty obligation discharged by the assessee. It is rather exchange of old TV sets by new TV sets and the assessee has charged money from the customers though at a reduced price in lieu of exchange of old TV sets. Thus, it is inapplicable on the facts of the instant case. 18. This Court in the case of Ganganagar Bottle Supply Co. (supra) had an occasion to consider the issue about empty bottles having been purchased by the non-petitioner (assessee) from hawkers and casual traders and it was proved by the assessee that these very bottles came in the rotation i.e. from the assessee to the consumers and from consumers to hawkers and casual traders, who thereafter sold them to M/s Ganganagar Sugar Factory. Therefore, in these facts and circumstances, this Court came to the conclusion that it was proved that tax was paid once, whereas in the present case, the assessee has been unable to prove whether any tax was paid for the reasons given hereinbefore. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the survey that things came to light and even thereafter neither the assessee declared the transaction in the return furnished by it nor did he produce the relevant books of accounts, therefore, he submitted that the department has been able to satisfy the requirements as contained in Section 65 and all the three authorities have consistently and concurrently held that there was deliberate attempt on part of the assessee not to show the transaction in question or to pay tax or even intention to pay the tax. Accordingly, he justified the order of imposition of the penalty. 22. I have considered the arguments, here is a case where neither sale/purchase was recorded in the books of accounts nor even shown in the return of income, neither even the credit notes were entered in the books of accounts, nor were shown in the return of sales tax. Had there been the intention of the assesse at least to show in the books of accounts possibly then the assessee could have had a good case, but it is a finding of fact by all the three authorities that the assessee for the reasons best known to him did not produce the books of accounts even at the appellate stage. Therefore, in my view as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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