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TMI Blog1999 (11) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal and further on the ground that under section 12-A introduced by Ordinance No. 10 of 1990 furnishing of form III-C(1) was conclusive evidence of purchases on behalf of self. 2.. Aggrieved by the orders of the assessing authorities the dealer filed first appeals which were dismissed by the first appellate authority and the second appeals were also dismissed by the Tribunal. The assessee has, therefore, approached this Court through these revisions under section 11 of the U.P. Sales Tax Act, 1948. 3.. Sri Bharatji Agarwal, learned Senior Counsel for the revisionist and Sri B.K. Pandey, learned Standing Counsel for the revenue/respondent have been heard. 4.. It is submitted by Sri Agarwal that the Tribunal has recorded a finding that the assessee at the Tribunal stage had filed a list of ex-U.P. principal and had also produced account books and 6-R and 9-R issued by the Mandi Samiti showing that the purchases were not on behalf of self but were made on behalf of ex-U.P. principal during inter-State trade and commerce. His submission is that mere submission of form III-C(1) was not sufficient to reject the claim of the assessee. It is further submitted that the amendment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has also not considered the material fact as observed by the first appellate authority in the orders passed by it holding that the dealer had prepared bills in the name of ex-U.P. principal adding therein the amount of the purchase tax and having realised it from them. The Tribunal ought to have examined the material produced by the assessee filed by it at the time of hearing of the appeal and should have examined each transaction in the light of the arguments made on behalf of the assessee as also in the light of observations made by the first appellate authority. 7.. It may be pointed out here that in Commissioner of Sales Tax v. Hanuman Trading Company [1979] 43 STC 408; 1979 UPTC 809 the Allahabad High Court had held that purchases made by the commission agents in U.P. on behalf of the principals outside the State, where the goods so purchased were despatched to such principals, were inter-State purchases inexigible to tax under the U.P. Sales Tax Act. This decision of the Allahabad High Court came up for consideration in Commissioner of Sales Tax v. Bakhtawar Lal Kailash Chand Arhti reported in [1992] 87 STC 196 (SC); 1992 UPTC 971 by the Supreme Court. It was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Sales Tax Act. This proposition is not, and cannot, be disputed by the learned counsel for the parties." 8.. While interpreting the above observations in the case of Balabhagas Hulaschand v. State of Orissa [1976] 37 STC 207; 1976 UPTC 230 the honourable Supreme Court in the case of Commissioner of Sales Tax v. Bakhtawar Lal Kailash Chand Arhti [1992] 87 STC 196; 1992 UPTC 971 held that "the said observations, no doubt rather widely worded, must be understood in the context of the question that arose for consideration in that case, viz., whether an agreement of the sale is included within the definition of 'sale' as defined in the Central Sales Tax Act. Be that as it may, the true position has since been explained in the later decision in Union of India v. K.G. Khosla Co. (P.) Ltd. [1979] 43 STC 457 (SC); [1979] 3 SCR 453; 1979 UPTC 751 (SC). It is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected". 9.. The Tribunal ought to have examined the factual position in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing inter-State purchases were exempt from tax under the Central Sales Tax Act. The assessee had not claimed any exemption from payment of tax under section 3-D of the U.P. Sales Tax Act. It is now well-settled that the State can charge only such tax which is permissible under the said laws. If purchases are made for ex-U.P. dealers in the course of interState trade and commerce then such purchases are not taxable under the U.P. Sales Tax Act. A division Bench of this Court to Hindustan Aluminium Corporation Ltd. v. State of U.P. [1978] 41 STC 147; 1977 UPTC 81 held as follows: "Now, it is not disputed that the State can charge only such tax as is permissible under the law. Liability to tax does not depend on the fact as to whether a dealer has or has not charged any sales tax from its customers, or has charged a higher amount...... Relief can be given when an illegal impost not authorised by the law is made......" 13.. In Commissioner, Sales Tax v. Radhey Shyam Ram Autar [1997] 107 STC 122; 1997 UPTC 472, a single Judge of this Court had held that since the claim of the dealer does not relate to section 3-D of the Act, the provisions of section 12-A cannot be applied and no pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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