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TMI Blog2015 (7) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... sale but an interstate sale attracting the tax liability under the CST Act. That will have to be determined. One cannot proceed on the footing that the Assessing Officer's conclusion is the only one which can be ultimately reached. Merely because a detailed order of assessment has been passed on the basis of a purchase transaction directly by the customers with all specifications and details to the Head Office would not, to our mind, be enough. The Tribunal should not have expressed any opinion on this disputed issues. - there will be a stay of recovery of the amount assessed to tax under the assessment order and which is challenged in the Appeal before the Tribunal. Meaning thereby, the amount as directed need not be deposited. However, this order and direction does not mean that the Tribunal is precluded from passing appropriate orders and in accordance with law at the hearing of the Appeals. - matter remanded back - Decided in favour of assessee. - Writ Petition No. 6533 of 2015, Writ Petition No. 6534 of 2015 - - - Dated:- 21-7-2015 - S C Dharmadhikari And G S Kulkarni,JJ. For the Appellant : Mr V Sridharan with Mr Sanghavi with Mr Puneeth Ganapathy with Ms Niyati Haka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST Act. The Petitioner applied for stay of recovery pending the disposal of the Appeal. However, the Tribunal has directed the Petitioner to deposit a sum of ₹ 3,53,12,000/- towards part payment of the demand for granting stay and admission of the Appeal. This order was passed under section 18A(5) of the CST Act. The Petitioner was first advised to appeal before the Central Sales Tax Appellate Authority under section 20(1) of the CST Act but having found that the Appeal thereunder was incompetent and not maintainable, it was dismissed on 2nd July, 2014. 6) It is in the above circumstances that the Petitioner has approached this Court in its Writ Jurisdiction. 7) Mr. Sridharanlearned Senior Counsel appearing for the petitioner would submit that the Tribunal will have to determine as to whether the conclusion reached by the Assessing Officer is accurate and correct. That question is yet to be decided. The Appeal is pending. However, sub section (5) of section 18A requires the highest appellate authority in the State to consider relevant facts. Section 18A(5) is couched in a peculiar language, wherein, even the discretion, while granting interim stay, has to be exercised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Oil India Ltd. vs. The Superintendent of Taxes and Ors. reported in (1975) 1 SCC 733, Union of India vs. K. G. Khosla and Co. Ltd. reported in (1979) 43 STC 457 and Shriram Refrigeration Industries Ltd. and Anr. vs. Commercial Tax Officer and Ors. reported in (1994) 95 STC 488 clinch this issue. 10) On the other hand, Mr. Sawant would submit that in the present case the order of the Assessing Officer is clear. The Assessing Officer has referred to the books of account produced, sales/purchase register, tax invoices, debit and credit notes, ledger and P L accounts. In the case where the assessment is of 1st April, 2008 to 31st March, 2009 what the Assessing Officer has found is that the gross turnover of sales is determined at ₹ 858,37,68,170/-. Out of this, interstate sales under section 8(1) are allowed at ₹ 647,62,19,099/-. The assessment order refers to the input tax and what he has determined, according to the assessment order, is that there is a claim that there is a transfer to branches in other States. However, as far as that is concerned, the assessment order records that during the verification and interaction with dealer, it was revealed that poten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding tax liability. However, we do not find the Tribunal having adverted to section 18A(5) of the CST Act. Pertinently, this is not a Appeal which the Petitioner Appellant preferred after having exhausted the remedy of Appeal before the Joint commissioner of Sales Tax, which is the first appellate authority. This is an Appeal directly to the Tribunal and that is why section 18A of the CST Act was invoked and applicable. In the circumstances and if this was present to the mind of the Tribunal, as is apparent, then, the Tribunal should have been aware of sub section (5) of section 18A of the CST Act. There, the Tribunal is also obliged to consider the relevant facts. The relevant facts inter alia are deposit of any amount towards local or Central Sales Tax in other States on the same goods. There is a categorical averment in the Writ Petition and even in the memo of Appeal that taxes to the tune of ₹ 11,79,71,864/- have been paid in other States. Therefore, whether the Assessing Officer was correct in adjudicating the matter by applying the CST Act and terming the sale in question as interstate sale is yet to be finally decided. All records of assessment are before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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