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TMI Blog2010 (2) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... purchaser, namely, Zilla Parishad is made liable to pay purchase tax on such purchases under section 41(2) of the Bombay Act? Held that:- As question (1) indirectly arises in our opinion it was not for the selling dealer to go beyond the declaration produced by the Zilla Parishad. The section as amended itself makes it clear that if it is found that such dealer was not entitled to issue such declaration then such dealer would be liable to pay the tax. In our opinion, therefore, the question will have to be answered in the affirmative namely that the Tribunal was right in holding the respondent was entitled to claim concessional rate of tax. In so far as the second question is concerned, it is merely consequential. Even otherwise cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility on the sales effected to Zilla Parishad which is admittedly not a State Government solely on the ground that the purchaser, namely, Zilla Parishad is made liable to pay purchase tax on such purchases under section 41(2) of the Bombay Act? Section 41(2) of the Bombay Sales Tax Act reads as under: 41. (2) Where any dealer or person has purchased any goods under a declaration given by him under any of the notifications issued under this section and (a) any of the conditions subject to which such exemption was granted, or (b) any of the recitals or the conditions of the declaration, are not complied with, for any reason whatsoever, or, in any other case, where such dealer or person was not entitled to issue such declaration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d preferred an appeal before the Deputy Commissioner of Sales Tax (Appeals) who was pleased to confirm the order of the assessment and disallow sales against the declarations in form AF issued by Zilla Parishad. The respondent aggrieved preferred second appeal bearing No. 634 of 1993 before the Tribunal. In the second appeal the learned Tribunal was pleased to hold considering the provisions of section 41 that it was a duty of the purchaser to effect purchase as per the condition notified in the declaration. The learned Tribunal held that the action of the lower authority in subjecting sales tax against AF forms to sales tax is erroneous and illegal and this obligation would be directly lying on the shoulders of the purchaser and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c., after April 1, 1987 only can be disallowed. This contention was rejected by holding that the notification only clarifies the position which existed before April 1, 1987 and accordingly dismissed the appeal. In the second appeal preferred before the learned Tribunal the contention advanced was that the duty was not cast on the respondent-dealer to see whether a particular Department is in fact a Government Department. It was argued that under section 41 the amendment which came into force with effect from April 1, 1987 requires that sales against such forms to such authority are valid and, therefore, it stood to reason that these forms would be allowed as a valid document. On behalf of the Revenue the Assistant Commissioner justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second appellate authority did not consider the question of obligation on it to find out whether the declaration could have been issued. The submissions on behalf of the Department are reflected in para 3 of the order of the learned second appellate authority. Nowhere was this contention raised nor has the Tribunal anywhere referred to such a contention. Similarly, neither before the assessing authority nor before the first appellate authority was such a contention raised. It is only before the reference court that such a contention was raised. In our opinion the question must arise from the order of the Tribunal. Even otherwise the question as raised has not referred to such question. The question No. (1) as formulated is whether c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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