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TMI Blog2016 (7) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1969 for the assessment year 1986-87. 2. The facts of the case are as under:- 2.1 Oil & Natural Gas Corporation Limited (herein after referred to as "the petitioner") is a Government Company engaged in the business of exploration and exploitation of hydro carbon and its sale. The petitioner is a registered dealer within the meaning of the term "dealer" defined under the provisions of Section 2 (25) of the Gujarat Sales Tax Act, 1969 (herein after referred to as "the Act"). The petitioner makes payment of sales tax as per the Gujarat Sales Tax Act. Petitioner No.2 is a shareholder of the petitioner no.1 and is vitally interested in the conduct of the business and affairs. Under the provisions of Section 46 (1) (I) of the Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat Sales Tax Tribunal in an appeal filed against the aforesaid order dated 8.3.1989 held that sales tax under the Act could not be levied on such transactions in view of which the respondent did not have any jurisdiction to issue show cause notice or pass any order under the provisions of the Act. Therefore, the present petition is preferred before this Court. 3. Mr.Gupta, learned advocate for the petitioner submitted that in view of the decision of this Court in Sales Tax Reference No.8 of 1998, and in view of the decision of the Supreme Court in Madras Marine and Co. v. State of Madras reported in AIR 1986 SC 1760, transaction of sale of ONGC is not a transaction effected within the State of Gujarat and it is not liable to tax as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion are quoted below:- "46. Imposition of penalty for contravening certain provisions: (1) If any person collects any amount by way of tax in contravention of the provision of [section 56] he shall be liable to pay, in addition to any tax for which he may be liable, (i) a penalty equal to such amount as shall not be less than the amount, so collected or more than double such amount, in a case where the Commissioner has reason to believe that such person has willfully contravened the provisions of [section 56] and (ii) a penalty equal to the amount so collected, in any other case." "56. Prohibition against collection of tax in certain cases. (1) No person shall collect any sum by way of tax [in respect of sale or specified sale of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d c) BG Exploration and Production India Limited and Another v. State of Gujarat through Secretary and Others in Special Civil Application Nos.5159/2010 and allied matters dated 08.05.2015. 4. Considering the ratio laid down in the above decisions and in the facts of the present case, we are of the view that the issue raised in this Appeal is required to be answered in favour of the assessee." 7. In view of above, the petitioner is not bound to pay the taxes, therefore, the question of penalty will not arise. In view of this, present petition is allowed. Rule is made absolute accordingly with no order as to costs. 8. Regarding the contention raised by the learned AGP, it will be open for the State Government to initiate appropriate proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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