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TMI Blog2009 (2) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... entum of gross turnover. Hence, for levy of additional tax the gross turnover is the only relevant factor once it is found leviable in case of a particular dealer. The term "gross turnover" is defined under the Act and it is clearly same for the purpose of charging of sales tax as well as additional tax. But the taxing officer has enhanced the gross turnover for the purpose of additional tax in the present case by adding the amount of tax assessed on the gross turnover. This is patently against the provisions of section 6 of the Act which does not permit additional tax on the aggregate of gross turnover and tax assessed. In favour of the assessee and against the Revenue. - 28,29 of 1993 - - - Dated:- 9-2-2009 - SHIVA KIRTI SINGH AND SHYAM KISHORE SHAARM , JJ. SHIVA KIRTI SINGH J. Both the cases relate to the same assessee for the periods 1984-85 and 1985-86, respectively. Both the assessment orders assessing sales tax under the Bihar Finance Act, 1981 (hereinafter referred to as, the Act ) are dated February 20, 1991, passed by the Deputy Commissioner of Commercial Taxes, Muzaffarpur Circle, Muzaffarpur. By the order relating to the year 1984-85 the claim of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with relevant statement of case and relevant annexures: (1) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law in failing to decide all the issues raised before it in its revisional order and later deciding some in the review order by a cryptic and non-speaking one sentence order that the reliefs not granted should be taken as rejected . (2) Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the Bhansar certificates were unreliable is wholly arbitrary and perverse, based on mere suspicion, surmises and conjectures and not on any material on the record, rather on material contrary to law and for violation of the principles of natural justice? (3) Whether, the Tribunal having found that the goods had actually been transported from Muzaffarpur to Nepal in pursuance of the agreement to sell with the Nepal parties, such sales have been rightly termed as intra-State sales? (4) Whether, on the facts and in the circumstances of the case, the rejection of the gross turnover shown and also the enhancement thereof by Rs. 15,91,019 by estimate at Rs. 2 crores, are wholly arbitrary and illegal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tier of India, the Tribunal has given a finding of fact that the petitioner could not establish his claim of export sales to Nepal. The learned counsel for the petitioner submitted firstly that since no particular mode of evidence has been prescribed by law or under the Act, for proving export sales, all other modes to prove the same is permissible. For this reliance was placed upon the judgment of the apex court in the case of Commissioner of Sales Tax v. Prabhudayal Prem Narain [1988] 71 STC 1. In that case the provisions of section 3D of the U.P. Sales Tax Act, 1948 and rule 12B of the U.P. Sales Tax Rules were considered and in view of the requirement of declaration forms for sale to a registered dealer it was held that if the assessee had not furnished the required declaration forms in order to be entitled for exemption, the assessee could not file any other evidence requiring consideration by the taxing authorities. Secondly, it was submitted that even if some requirement of proper export had not been observed, in spite of such illegality the export sales may still be valid as such for the purpose of taxation. For this reliance was placed upon a judgment of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case cited on behalf of the petitioner noticed above was in the context of section 10 of the Income-tax Act and is not of any assistance in answering the questions under consideration in the present case. On a consideration of the materials on record and the submissions, the questions Nos. 2 and 3 have to be answered by holding that finding of the Tribunal in respect of Bhansar receipts, in the fats of the case, cannot be held to be wholly arbitrary or perverse or based on mere suspicion, surmise and conjectures. The findings leading to not accepting the export sales to Nepal are on consideration of all relevant facts and circumstances and such a finding cannot be said to be contrary to law or in violation of principles of natural justice. In fact, the Tribunal noticed the transportation receipts and the agreement to sale but these were not found reliable or sufficient to prove the claim that the goods had actually been exported to Nepal through the Indian Customs border which was required in ordinary course of business of export. These two questions are thus, answered against the petitioner and in favour of the Revenue. The learned counsel for the petitioner next raised ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aggregate. According to learned counsel, the definitions of gross turnover and sale price do not permit inclusion of tax amount in the sale price. Gross turnover is defined under section 2(j) of the Act so as to be the aggregate of sale price received and receivable by a dealer, including the gross amount received or receivable for execution of works contract. Under section 2(u) sale price has been defined to mean the amount payable to a dealer as valuable consideration in respect of the sale or supply of goods. Explanation I and Explanation II are material and they are as follows: Explanation I. Sale price shall include any amount charged by the dealer for anything done in respect of the goods at the time of, or before delivery thereof to the buyer; Explanation II. Sale price shall not include the cash discount allowed by the dealer according to the ordinary trade practice, if shown separately. It shall also not include the cost for transport of the goods from the seller to the buyer, provided such cost is separately charged to the buyer. Explanation I indicates that sale price is or can be inclusive of any amount charged in respect of the goods. Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders of assessment by the taxing officer show that no rebate was admissible to the assessee for either of the assessment periods. The Tribunal upheld the disallowance of rebate on the ground that under section 16(5) of the Act, in order to obtain rebate both the tax challan and the statement were required to be filed before the prescribed date but the monthly returns were not filed in time. This part of order of Tribunal is not under challenge and hence, the question of law under consideration is found not necessary to be decided in these cases. Since the petitioner is not entitled for rebate, therefore, no question arises of deducting the rebate amount from the total amount of tax payable by him for the purpose of levy of surcharge. The only other issue canvassed on behalf of the petitioner was in respect of question No. (4). It was submitted that rejection of the gross turnover and its enhancement by Rs. 15,91,019 so as to make it Rs. 2 crores (for the year 1984-85) was arbitrary and illegal. The submission in effect amounts to assailing the assessment made on best judgment which was unavoidable because the assessee had not maintained cash book and register, etc., for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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