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TMI Blog2002 (8) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is registered under the Bengal Finance (Sales Tax) Act, 1941. Sales of such Indian-made foreign liquor (IMFL) as per provisions of the Act are exempt from sales tax under section 5(2)(a)(vf) and also from turnover tax as mentioned in 6B(2)(f) of the Act of 1941. In the assessment for the period from April 1, 1995 to April 30, 1995, respondent No. 1, Assistant Commissioner, Commercial Tax, Sealdah Charge, by order of assessment dated June 15, 1998 rightly held that no sales tax on petitioner' s sales of IMFL amounting to Rs. 8,62,271 is leviable or payable but quite unlawfully levied turnover tax on the above sale amount at the rate of 1 per cent in terms of section 6B(2)(f) of the Act. As per law, turnover tax is not payable in such sale of IMFL. Turnover tax is leviable on sale under section 5(2)(a)(va), 5(2)(a)(vb), 5(2)(a)(vc), 5(2)(a)(vd), 5(2)(a)(ve) and not on sales under 5(2)(a)(vf). As no turnover tax is leviable on sales of IMFL under section 5(2)(a)(vf) and 5(2)(a)(vg) of the Act of 1941 and as turnover tax was levied unlawfully, the petitioner preferred appeal before respondent No. 2, Deputy Commissioner who by order dated May 11, 1999 affirmed the assessment order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (2) of section 6B cannot but mean section 5(2)(a)(va), 5(2)(a)(vb), 5(2)(a)(vc), 5(2)(a)(vd) and 5(2)(a)(ve) of the Act, since there is no clause (e) since 1987 in section 6B(2). It is submitted that turnover tax is leviable only on those sales covered by sub-clauses (va) to (ve) of section 5(2)(a). Respondent No. 1 as per Sri Mukherjee rightly allowed petitioner's sales of Indian-made foreign liquor under section 5(2)(a)(va) as attracting no tax on turnover. So no turnover tax was leviable on such sale of IMFL in terms of section 6B(2)(f) of the Act. Levying of such tax under section 6B(2) as ordered as such is illegal as per him. His further submission is that respondent No. 2 in his appellate order fell into error by holding that clauses (a), (b), (c), (d) and (e) in section 6B(2)(f) refers to (a), (b), (c), (d) and (e) of sub-section (2) of section 6B. Learned lawyer also mentions that the Board went wrong as it relied upon a previous assessment order dated June 9, 1997 where no question of levy of turnover tax was involved. The dealer was held there liable to pay tax on sale even if the sale took place after April 10, 1994 arising out of liquor held in stock as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made from the gross turnover as mentioned in sections 2(h), 2(i), 5(2)(a)(i), 5(2)(a)(ii), 5(2)(a)(v), 5(2)(a)(va), 5(2)(a)(vb), 5(2)(a)(vc), 5(2)(a)(vd), 5(2)(a)(ve), 5(2)(a)(vf), 5(2)(a)(vg) and 5(2)(a)(vi) and 5(2)(b). The provisions for levy of turnover tax have been amended with effect from April 11, 1994. A dealer is made liable to pay turnover tax if the aggregate of gross turnover of the dealer in any accounting year exceeds Rs. 25 lakhs. We know that when a dealer acquires liability to pay turnover tax he shall remain liable to pay the same unless and until aggregate of gross turnover in the accounting year falls below the quantum fixed for the purpose. The rate of turnover tax is given in the very section 6B. How the said turnover is to be computed is also given in section 6B(2). In computing the turnover on which turnover tax is leviable, following deductions as detailed in section 6B(2) shall be made from the gross turnover under the Act of 1941: (i) sales of declared goods other than those on which tax is levied at the rate of 2 per cent or less, (ii) sales of electrical energy or newspapers, (iii) sales of motor spirit, (iv) sales of tax-free goods included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 5 is actually payable. That being the clear position of law, the argument of learned Advocate for the petitioner as made and as referred to earlier has no leg to stand. 9.. We may mention that the argument of the learned Advocate for the petitioner to the effect that "other than those specified in clauses (a), (b), (c), (d) and (e)" appearing in clause (f) of subsection (2) of section 6B--refers obviously to section 5(2)(a)(va), 5(2)(a)(vb), 5(2)(a)(vc), 5(2)(a)(vd) and 5(2)(a)(ve)--also has no force. A careful reading and analysis of the various clauses of sub-section (2) of section 6B and various clauses and sub-clauses of section 5 of the Act of 1941, makes the matter clear. We do not fail to notice that clause (f) of sub-section (2) of section 6B refers to "clauses" (a), (b), (c), (d) and (e) and not to any "sub-clause" (va), (vb), (vc), (vd) and (ve) are merely sub-clauses of clause (a) of sub-section (2) of section 5. So clauses (a), (b), (c), (d) and (e) mentioned in clause "f " above obviously refers to clauses (a), (b), (c), (d) and (e) of sub-section (2) of section 6B. Had the Legislature intended to mean (va) to (ve) as contended by Sri Mukherjee, instea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 1941, makes the matter clear. We do not fail to notice that clause (f) of sub-section (2) of section 6B refers to "clauses" (a), (b), (c), (d) and (e) and not to any "sub-clause" (va), (vb), (vc), (vd) and (ve) are merely sub-clauses of clause (a) of sub-section (2) of section 5. So clauses (a), (b), (c), (d) and (e) mentioned in clause "f " above obviously refers to clauses (a), (b), (c), (d) and (e) of sub-section (2) of section 6B. Had the Legislature intended to mean (va) to (ve) as contended by Sri Mukherjee, instead of the word "clauses", "subclauses" would have been mentioned in section 6B(2)(f). In the impugned appellate order dated May 11, 1999 of the Deputy Commissioner, Dharmatala Circle, it has been interpreted and rightly so in our opinion that, "other than those specified in clauses (a), (b), (c), (d) and (e) means sub-clauses (a), (b), (c), (d) and (e) of sub-section (2) of section 6B", though of course appropriate reason for arriving at such an interpretation is lacking there. We also concur accordingly with the ultimate finding in the impugned order dated June 15, 1998 of the Assistant Commissioner, Sealdah Charge, to the effect that though the petitioner-deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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