9911796707
TMI Blog2007 (5) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... acture and sales of electronic goods. In the return, dealer had shown certain sales against form IIIB and admitted the tax liability at the concessional rate and claimed full exemption on some of the sales. It appears that before the assessing authority form IIIB for some of the sales were filed but form IIIB for some of the sales claiming full exemption and partial exemption could not be furnished. On account of non-furnishing of form IIIB, assessing authority disallowed the exemption as well as partial exemption, as the case may be and levied the tax at the normal rate applicable to the goods. The assessing authority treated the tax assessed as the tax admittedly payable along with return and demanded the interest under section 8(1) of the Act at two per cent from the date of filing of the return till the date of deposit. The levy of tax on such turnover at normal rate has been confirmed up to the stage of Tribunal but the Tribunal has deleted the interest under section 8(1) of the Act. Being aggrieved by the order of the Tribunal, present revisions have been filed. Learned Standing Counsel submitted that the dealer claimed the exemption or concessional rate of tax based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar reported in [2003] 22 NTN 522; and 5.. Commissioner of Sales Tax v. Hindustan Aluminium Corporation reported in [2002] 127 STC 258 (SC); [1999] UPTC 1. I have given my anxious considerations to the rival submissions made by learned counsel for the parties. Let us examine some relevant provisions relating to the issue. It is relevant to refer section 7, section 7(1), (1A) of the Act, rule 25B(5) and rule 41(1), (2), (3) and (4) of the Rules, which read as follows: Section 7. Determination of turnover and assessment of tax. (1) Every dealer who is liable to pay tax under this Act shall submit such return or returns of his turnover at such intervals, within such period, in such form and verified in such manner, as may be prescribed; but assessing authority may in its discretion, for reasons to be recorded, extend the date for the submission of the return by any person or class of persons. (1A) Before submitting the return under sub-section (1) or along with such return the dealer shall deposit in such manner as may be prescribed the amount of tax due on the turnover shown in such return. Rule 25B. Authority from which declaration forms may be obtained; use, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary for such dealer to furnish in annexures I and II detailed information according to code numbers in respect of goods in which business was carried on by him: Provided further that a dealer whose total admitted tax liability during the assessment year immediately preceding did not exceed Rs. 500 and whose estimated admitted tax liability during the assessment year is not likely to exceed Rs. 500 may, instead of submitting a return as aforesaid, estimate his turnover on the basis of the turnover admitted by him in his return for the assessment year, immediately preceding, calculate the amount of tax payable thereon and deposit a sum equal to one fourth thereof within a month of the expiry of each of the first three quarters and deposit the balance of tax on the turnover admitted by him in his return for the assessment year, which shall be prepared and submitted in the manner laid down in this sub-rule, within a month of the expiry of the relevant assessment year. Explanation I. 'Admitted tax liability' means the tax which is payable under this Act on the turnover or, as the case may be, the turnover of purchases or both, as disclosed in the accounts maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sub-section, the tax admittedly payable means the tax which is payable under this Act on the turnover of sales or, as the case may be, the turnover of purchases, or of both, as disclosed in the accounts maintained by the dealer, or admitted by him in any return or proceeding under this Act, whichever is greater, or, if no accounts are maintained, then according to the estimate of the dealer, and includes the amount payable under section 3B. Now let us examine the various decisions on the subject. In the case of Annapurna Biscuit Manufacturing Co. v. State of Uttar Pradesh reported in [1982] 50 STC 56; [1980] UPTC 1320, Division Bench of this court held as follows (page 66 of STC): . . . The learned counsel mentioned that as sale was made to registered dealers and such sales being exempt under section 3D(1) the petitioner did not commit any error in determining the tax payable to be nil under section 8(1). Therefore, its failure to file form could result in enhancement of 'tax in excess' but the assessing authority could not while assessing tax create any demand for interest. Reliance was placed on Commissioner of Sales Tax v. Venus Auto Traders [1980] UPTC 273. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint for the liability for payment of interest on the unpaid part of the admitted tax has been provided for and it is June 1, 1975 or the last date prescribed for payment of admitted tax, whichever is later. The Tribunal in the case in hand has not given any reason for deletion of levy of interest except saying that it is not proper in their opinion. The order of the Tribunal is thus laconic and cannot be sustained. The apex court examined section 8(1) of the Act in the case of Commissioner of Sales Tax v. Qureshi Crucible Center [1993] 89 STC 467 (SC); [1993] UPTC 901 and held that section 8(1) of the Act does not say that non-payment should be mala fide. It has been further held that where the dealer calculated the tax at an inapplicable rate, dealer is liable to pay interest under section 8(1) of the Act. The expression tax admittedly payable means the tax which is payable, inter alia according to the return filed by the dealer. In the case of Commissioner of Trade Tax, U.P., Lucknow v. Deepak Hume Pipe Manufacturing Company [2006] 29 NTN 104 learned single judge of this court held that the burden lay upon the dealer to file requisite form for the claim of exemption or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 8, it is unnecessary to go into the assessee's contention that a substantial part of the amount claimed by the Revenue as and by way of interest is under the provisions of the Central Sales Tax Act, 1956 and under that Act no interest is leviable. The case of Hashmatullah and Company, Bareilly v. Commissioner of Sales Tax reported in [1995] UPTC 626. In this case on the non-furnishing of requisite form IIIA exemption has been denied and the tax has been assessed and the interest under section 8(1) of the Act has been demanded. This court confirmed the levy of tax but deleted the interest. This court held as follows: The next point raised in this case is about the leviability of interest on the tax levied on the aforesaid turnover. The assessing officer has levied interest under section 8(1) of the Act and the levy has been upheld by the Tribunal. The dealer had been denying the taxability of the purchases on the ground that it were the sales that were taxable in the hands of the selling dealers because the revisionist did not furnish any form IIIA to them. The authorities below have treated the tax levied as the tax admittedly payable and the learned Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest under section 8(1) of the Act has been demanded. The claim of the dealer was that since application under section 4A of the Act was filed under the bona fide belief, the tax was not realised from the customers and neither the liability of tax has been admitted nor deposited and, therefore, interest under section 8(1) of the Act was not chargeable. Tribunal accepted the plea of the dealer and deleted the tax. On the revision filed by the revisionist this court held as follows: In case, the eligibility certificate was granted under section 4A, the dealer's sales would have been exempt from tax. The dealer had moved an application for the grant of an eligibility certificate which was not disposed of in time and in the returns the dealer did not admit that any tax was payable on the turnover. The assessing officer levied interest under section 8(1) of the Act, which was deleted by the Assistant Commissioner (Judicial). This order has been upheld by the Tribunal. Both the authorities have held that in the aforesaid circumstances the tax payable on the turnover could not be treated as admitted tax. This finding in my view is correct. There is no finding by the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
