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TMI Blog2009 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the purchases from nonresidents who were liable to pay tax under section 5(1) of the Act. We make it clear that merely because sellers who are liable under section 5(1) are not assessed or cannot be assessed on account of limitation is not a ground for fastening liability on the respondent under section 5A. The respondent is given two months' time from the date of receipt of a copy of this judgment for furnishing particulars, and records before the assessing officer. However, if no proof is produced within the period granted above, towards proof of purchase with names and addresses of the non-residents then the assessment made under section 5A will stand confirmed. X X X X Extracts X X X X X X X X Extracts X X X X ..... s counsel contended that bullion is an item taxable at sale point and the turnover is assessable at the sale point at the hands of the sellers. According to counsel for the respondent, the respondent has furnished the names and addresses of the sellers from whom bullion was purchased. After hearing both sides and after going through the order of the Tribunal, we do not think the view taken by the Tribunal can be sustained. Purchase tax is payable under section 5A if the commodity purchased is taxable and the purchase is in circumstance in which no tax is payable by the seller at the point of sale of goods in the State. This position is made clear by the decision of the Supreme Court in State of Tamil Nadu v. M.K. Kandaswami [1975] 36 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the respondent. It is for the respondent to produce sale bills or purchase vouchers to prove that non-resident seller was engaged in the "business" of importing and selling of bullion and his turnover was above the limit that attracts liability under section 5(1) for the purpose of escaping liability under section 5A of the Act. In the normal course a non-resident Indian occasionally visits his home and he cannot be expected to be doing business in the import and sale of bullion. However, if any such non-resident Indian who sold bullion to the respondent was engaged in the business attracting liability then the turnover representing purchases from such non-resident cannot be assessed at the hands of the purchaser. The responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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