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TMI Blog2011 (4) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... an order dated July 16, 2005. Thereafter the assessing authority had issued a notice in form No. 31A, contending in the notice that certain transactions of the petitioner are covered under proviso to section 5(3)(a) of the Act, 1957. Facts narrated in the assessment order are as follows: "For example the assessee has purchased 'ROJPHOS' branded rock phosphate from M/s. Rajasthan State Mines and Minerals Limited, Hemavathy Nagar, Hassan, vide invoice No. 38 dated Feb ruary 6, 2004 where 147 MTS of 'ROJPHOS' is sold at Rs. 7,78,066 wherein sale price of one MT of 'ROJPHOS' Rock Phosphate is at Rs. 2,103. On the same day the assessee has also effected first sale of 20 MT of these goods to M/s. Krishna Plantations Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s selling the fertilizer under the brand name RAJPHOS, but also M/s. Indian Potash Limited is selling the said product. In view of more than one dealer dealing in the product, the approach of the assessing authority, the Joint Commissioner and the KAT is in incorrect approach. As there is another dealer and petitioner is not the sole dealer, it seeks for allowing the petition. In reply, the Additional Government Advocate submits that the applicability of proviso to section 5(3)(a) needs consideration. It has to be read in the spirit with which it is enacted, a separate class of dealers/transactions are carved, hence there is no merit in the submission of the learned advocate for the petitioner. Therefore, he prays for dismissal of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account or On account of other (iii) Exclusively to a market agent/distributor/wholesaler/dealer (iv) Subsequent sale of such goods by the latter (v) Is liable to tax under this section (vi) The tax so payable be reduced by the amount of tax already paid on the sale of such goods by the former. The discussion supra would disclose that the sale transactions which are carried on under a product name, exclusively by a certain dealer are covered, does not contemplate that exclusive right to deal with the said goods should be given to a particular dealer or sole dealer. The contention of the learned advocate for the petitioner that one more dealer is also dealing, the proviso is not attracted is an incorrect approach. In view of the sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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