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TMI Blog2009 (11) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... he sales tax on some bills for the abovesaid period and the sales bills did not indicate that the taxes are inclusive. On the basis of the said report and also on consideration of the assessee's reply to the pre-assessment notice, the assessing officer disallowed the exemption on the premise that the assessee had not collected the taxes and was not entitled for refund of the same. This order came to be questioned by the assessee before the appellate authority in Appeal No. KST Appeal No. 56/05-06/03-04. In so far as this issue is concerned, the appellate authority confirmed the finding of the assessing officer by its order dated June 23, 2005. Being aggrieved by the said order, the assessee filed an appeal before the Tribunal in S.T.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the honourable Supreme Court in the case of State of Karnataka v. C. Venkatagiriah and Brothers reported in [1994] Supp (2) SCC 572, wherein their Lordships have held that in so far as the discharge of the burden with regard to tax collected lies exclusively on the assessee and it depends on facts of each case and as such, the reasons given by the Tribunal at para 9 is required to be revised by this court. Per contra, Sri Chidanand Urs would contend that rule 6 of the Karnataka Sales Tax Rules itself is sufficient to meet the argument advanced by the learned Government Advocate inasmuch as, the rule contemplates that for arriving at tax component, the Revenue will take into consideration the total turnover and from out of the to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be carried out by the assessing officer, we hereby direct that the assessing officer to examine the claim of the assessee with reference to the records, as also the sales bills and any other documentary evidence that may be placed by the assessee to establish the fact that the taxes have been collected by the assessee and in the event, the assessing officer were come to the conclusion that taxes had been collected, it is needless to say that the assessee would be automatically entitled to claim the deduction of the said tax component for arriving at the total taxable turnover. In so far as rule 6 is concerned, we find that it is an enabling provision, which provides for the authorities to arrive at total turnover, or taxable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the dealer, it cannot be said to have been collected. No such general proposition can be evolved in a matter totally within the realm of appreciation of evidence. It is up to the dealer to discharge the said burden by producing such material as he can and it is for the appropriate authority to say whether the dealer has succeeded in discharging the burden or not. In this view of the matter, we cannot agree with the Tribunal's view which has been upheld by the High Court. The endorsement in the bill that the price charged is inclusive of tax is prima facie proof against the dealer's contention. Unless he produces material to displace the presumption arising from the said endorsement, he must be held to have collected the tax." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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