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TMI Blog2009 (5) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... so not be included in "notional tax liability - 14020 of 2005 - - - Dated:- 8-5-2009 - KUMAR M.M. AND BHALLA H.S. , JJ. The judgment of the court was delivered by M. M. KUMAR J.- This petition filed under article 226 of the Constitution is directed against order dated December 19, 2001 (P9) passed by the Haryana Sales Tax Tribunal (for brevity, the Tribunal ) and order dated May 26, 2005 (P11) dismissing the application of the dealer-petitioner for review of the order dated December 19, 2001. The basic issue raised in the instant petition is whether sales to registered dealers are includable in notional tax liability of a unit as defined in rule 28A(2)(n) of the Haryana General Sales Tax Rules, 1975 (for brevity, the Rules ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plea of the petitioner and allowed deductions on the sales made to registered dealer against form ST XV and no tax in respect of those transactions was calculated towards notional sales tax liability. In that regard, order dated February 8, 1999 was passed by the Assessing Authority (P6). However, the assessment for the year 1997-98, framed by the Assessing Authority was taken up for revision by the Deputy Excise and Taxation Commissioner, Hisar-respondent No. 3 on the premise that the dealerpetitioner could not be granted benefit of deduction for sales made to the registered dealers in view of provisions of first proviso to rule 28A(4) of the Rules, which provides for calculation of notional sales tax liability on the gross turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding the view taken by the revisional authority and dismissed the appeal vide order dated December 19, 2001 (P9). The Tribunal has further held that the instructions issued by the Excise and Taxation Commissioner cannot override the provisions of the Act and the Rules. In that regard reliance has been placed by the Tribunal on the judgment of the honourable Supreme Court rendered in the case of Bengal Iron Corporation v. Commercial Tax Officer [1993] 90 STC 47. On May 12, 2005 (P10), the dealer-petitioner filed an application for review of the order dated December 19, 2001, which was also dismissed, vide order dated May 26, 2005 (P11). Contentions Mr. Sandeep Goyal, learned counsel for the dealer-petitioner, has submitted that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2009] 22 VST 1. According to the learned counsel, the argument of the Department based on proviso (1) to rule 28A(4) was rejected in para 14 of the judgment. Mr. Goyal has placed heavy reliance on paras 12 and 13 of the judgment where rule 28A(2)(n) of the Rules has been interpreted. He contends that the only difference in the instant case is that it involves sales to the registered dealers whereas in Liberty Enterprises case [2009] 22 VST 1 (SC), export sales were involved. Ms. Ritu Bahri, however, has argued that sale to registered dealers would not be covered by the judgment of the honourable Supreme Court rendered in the case of Liberty Enterprises [2009] 22 VST 1 because such sales are entirely different than the export sales. She ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case we are concerned with sales made to registered dealer. Therefore, we find that the matter is covered in favour of the dealer-petitioner and against the Revenue. Accordingly, we hold that sales made to registered dealers were not includible in the matter of calculation of notional tax liability during the period in question. For the aforestated reasons this petition succeeds. The order dated December 19, 2001 (P9) and order dated May 26, 2005 (P11) passed by the Tribunal are set aside and direction is issued to the respondents to deduct the sales made to the registered dealers while working out taxable turnover. Accordingly the same would also not be included in notional tax liability . The petition is disposed of in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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