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TMI Blog2017 (4) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... even at the second appellate stage the ground could have been raised and highlighted. In such circumstances and when the argument on the benefit of this amended provision and available to the dealer was clearly ignored, then, a hypertechnical view of the matter was not justified at all - there was no warrant in denying the benefit of the amended provisions to the applicant/dealer before us - appeal allowed - decided in favor of appellant. - SALES TAX REFERENCE NO. 41 OF 2009 IN REFERENCE APPLICATION NO. 52 OF 2002 - - - Dated:- 21-3-2017 - S.C. DHARMADHIKARI B.P. COLABAWALLA, JJ. Mr. Subhash Surte with Mr. P.V. Surte for the Applicant. Mr. Dushyant Kumar, Asstt. Government Pleader, for the Respondent. ORAL ORDER (Per Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved and dissatisfied with this Order, the applicant/dealer preferred an appeal to the Assistant Commissioner of Sales Tax (Appeals). That appeal was dismissed on 25.3.1997. 5. The applicant/dealer preferred a Second Appeal bearing No.723 of 1997 to the Tribunal. The Tribunal dismissed it on 25.1.2002. 6. Thereafter, an application was filed seeking rectification being Rectification Application No.19 of 2002 invoking Section 62 of the said Act with a request to consider the retrospective amendment made by the Maharashtra Act No.XIX of 1996, dated 13.8.1996, with effect from 15.1.1975. The Tribunal was requested to rectify the mistake, but that application was also dismissed on 21.11.2003. 7. Then, a Reference Application was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in correct legal terms. That is why given the clear language of these substituted provisions, the questions should be answered in favour of the applicant and against the Revenue. 9. Mr. Surte has invited our attention to the specific statement that the entire demand as confirmed, namely ₹ 1,83,850/, was disputed and challenged. In the circumstances, he would submit that there is complete misconstruction in law by denying the benefit of the amended provisions. 10. Mr. Dushyant Kumar, appearing on behalf of the Revenue, supports the Appellate Order of the Tribunal. He would submit that the language of the legislation is clear. In the teeth of the same, the benefit could not have been derived by the applicant/dealer. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 13 therefore can be levied. 12. However, the real issue for consideration was whether the applicant/dealer was entitled to the benefit of subsection (4) of Section 16 as per the Maharashtra Act No.XXII of 1997. That provision reads as under: (4) When any Registered dealer who, before the date of commencement of this Amendment Act, has effected. (a) any purchases from a person who is not a dealer; or (b) the sale of capital assets pertaining to his business, has objected to levy of the tax on such purchases or sales, or has not paid the tax only on the ground that such purchase tax is not payable on the purchases effected from the person who is not a dealer or, as the case may be, such sales tax is not payable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchase tax in respect of such purchases. However, the burden is upon him to prove that the ingredients of this subsection are satisfied. That the provision is therefore attracted is a burden squarely on the dealer. 14. On record, therefore, we have an appeal memo. The Assessment Order is dated 31.8.1996. That confirms the demand of ₹ 1,83,850/. In the grounds of appeal the ground is that the Sales Tax Officer wrongly levied the penalty under Section 36(3)(b) and Section 36(4A), but the further portion has been omitted by the authorities, namely, the First Appellate Authority and the Tribunal from consideration. The ground of appeal says that the total demand of ₹ 1,83,850/should be fully deleted. If this is the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority's order and in its entirety. The Tribunal should have clearly perused the ground as a whole. Once the demand of ₹ 1,83,850/as a whole is impugned and challenged, and which demand includes the component of interest and penalty, then, we fail to understand as to how the Tribunal could have recorded the above finding. The ground of appeal mentions the quantum and as above. The appeal is not restricted only to the quantum of interest and penalty. If the demand should be deleted is the main ground then the wording thereof should have been considered. It is in these circumstances, we are of the opinion that the dealer was entitled to take the benefit of the exemption. Even the argument of the dealer's representative before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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