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TMI Blog2019 (1) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... on form, presumed to be sale to the consumer is liable to tax." The fact of the instant case are that the applicant was carrying on the business of stone grit. The stone grit is liable to tax on the point of sale to the consumer under the notification no. ST-II-5785/X-10(1)-80-UP-Act XV/48-Order-81, dated 07.09.1981. The revisionist has purchased the stone grit from a registered dealer without issuing Form 3-A, a declaration certificate, contemplated under Rule 12-A read with Secton 3-AAA of the U.P. Trade Tax Act (herein after referred as the Act). The stone grit purcahsed by the revisionist have been sold by the Revisionist to different parties. The revisionist claim the exemption on the sales affected by it on the ground that the stone grit was purchased by the revisionist from the registered dealer without issuing any declaration certificate (Form 3-A) and therefore, the sales were sale to the consumer in the hands of the seller (from whom the revisionist had affected the purchases), under Section 3- AAA of the Act. According to learned counsel for the revisionist, there is no liability in the hands of the revisionist as the sales are treated as sale to the consumer in the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Company Vs. Commissioner of Sales Tax ( Sales Tax Revision Nos. 320, 321 and 322 of 1979) decided on 8th April, 1980. Learned counsel has also placed reliance of a Division Bench judgment of this Court in the case of Shahabudin Zakir Hussain & Company Vs. Sales Tax Officer reported in 1970 UPTC 187. Learned counsel for the revisionist has submitted that since the tax has been charged by the seller from whom the revisionist has affected the purchases, though no Form 3-A was issued, there could be no any liability of tax in the hands of the revisionist. Per contra learned Additional Advocate General has submitted that stone grit is taxable at the point of sale to the consumer under Section 3- AA of the Act read with Rule 12-A and notification dated 7.9.1981 and he has referred the provisions of Section 3-AA, which provides as follows:- "Sec. 3-AA. Rate and point of tax in respect of certain goods.-(1) Notwithstanding anything contained in section 3 or 3-A, the turnover in respect of the following goods shall not be liable to tax except at the point of the sale by a dealer to the consumer, and the rate of tax shall be such, [not exceeding the maximum rate for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled in and signed by him." In the aforesaid background, learned Additional Advocate General has submitted that admittedly in the instant case the assessee/revisionist has not issued /furnished Form 3-A, which is a declaration certificate to be issued to claim the exemption from payment of tax and to show that the purchased goods have already taxed in the hands of the seller. Learned Additional Advocate General has pointed out that in fact the revisionist/assessee has not discharged the burden to prove that the tax has been paid by him on purchase on such stone grit as no evidence has been adduced by the revisionist at any point of time before any of the authorities. Learned Additional Advocate General has referred the contents in the referring order of this Court, which are quoted herein below:- "Once sales are treated as a sale to the consumer, then the subsequent sales cannot be liable to tax on the ground that sales are again sales to the consumers. It is further contended that the tax has been paid on the purchase on such stone grit, though there is no evidence in this regard. It is contended that the stone grit is a single point taxable commodity, therefore, no furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the sale was not made for consumption. In the case of J.K. Manufacturers Ltd. (supra) this Court has held that furnishing of forms during the assessment proceedings under Rule 12- A is mandatory. This Court has held that furnishing of declaration certificate is a method which provides the proof that the tax is paid by the seller. Learned Additional Advocate General has referred para-10,11 and 12 of J.K. Manufacturers Ltd. (supra) which are quoted herein below:- "10. Now, one thing is clear, and that is that the tax is levied only at the point of sale by the dealer to the consumer, In construing the provisions of Section 3-AA and Rule 12-A that must be kept clearly in mind. The Legislature appears to have anticipated that there would be considerable difficulty in determining whether a particular sale was made to the consumer. To obviate that difficulty, the Legislature enacted Sub-section (2) of Section 3-AA. It provides that unless the dealer proves otherwise every sale by him would, for the purposes of Sub-section (1) of Section 3-AA, be presumed to be to the consumer. The burden is thrown upon the dealer to show that the sale was not made to the consumer. It is manif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale by him is a sale to the consumer, it is the purchasing dealer who is liable to tax. Ordinarily, the purchasing dealer would furnish a Form III-A to the selling dealer and on production of that Form the selling dealer could establish that he was not liable to tax. But there may be cases where the purchasing dealer does not furnish the Form III-A to the selling dealer. In four Sales Tax References Commissioner of Sales Tax Vs. Lary Leather Agency, STR No. 255 of 1996, D/- 2-5-1969 (All), Commissioner of Sales Tax Vs. Society Leather Stores, STR No. 256 of 1996, D/-2-5-1969 (All), Commissioner of Sales Tax Vs. Star Leather Agencies, STR No. 257 of 1966, D/- 2-5-1969 (All) and Commissioner of Sales Tax Vs. Abdul Razzaq Leather Stores, STR No. 258 of 1966, D/- 2-5-1969 (All), this Court had recently to consider a situation where the assesses had admittedly made the sale to the consumer and had not furnished Form III-A to the dealer from whom he had purchased the goods. The contention of the assessee in each case was that as the selling dealer could not furnish Form III-A the tax should be levied on the selling dealer, and the tax having been levied on the selling dealer it could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section is this: (1) if a dealer purchase the goods liable to tax at the point of sale to the consumer from any registered dealer who is not liable to pay tax on such sale, the purchasing dealer shall pay such tax. If, however, the purchasing dealer establishes that the goods purchased by him have already been subjected to or may be subjected to tax under the U.P. Act or Central Sales Tax Act, he will get an exemption to that extent. (2) If the said goods are purchased from a person other than a registered dealer the purchasing dealer shall pay the tax payable on sale of such goods. If, however, he proves that tax payable has been paid, either wholly or partly, by the seller, the tax payable by the purchasing dealer in case he establishes any of the facts mentioned in Clauses (c) and (d) of Sub-Section (2). The central idea is that no transaction of sale (of goods taxable at the point of sale to consumer) should go untaxed. Either the seller pays the tax or the purchaser pays. It is for achieving this central purpose that Section 3-AAAA has been enacted providing for several situations. (54). It was argued for the petitioner that Sub-section (2) of Section 3-AAAA places a heavy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evisionist has effected the purchases. In the instant case, we have noticed that the revisionist though has shown in his return the supply of stone grit as exempted from payment of tax and further that the stone grit was purchased from the registered dealers and thereafter was supplied, however, during the course of verification of the book of accounts the assessing authority has noticed that the revisionist has issued the invoices in which he has charged the tax. The tax charged was paid to the revisionist by the purchasers/consumers. The findings so recorded by the assessing authority are confirmed by the First Appellate Authority as well as by the Trade Tax Tribunal. The relevant extract of the order of the Tribunal are necessary to be placed / quoted herein below:- In view of the aforesaid categorical findings of fact recorded by the Tribunal, in our opinion the claim of the revisionist cannot be accepted and the question of law, which has been referred for consideration by this Bench is answered as follows:- (i) The purchases of the stone grit (goods) made from a registered dealer without issuing Form- 3-A can be taxed in the hands of the revisionist/dealer/purchaser. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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