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TMI Blog2019 (9) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... by the revenue and held the assesssee not entitled to benefit of set off under Section 4-BB of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act'). 2. During assessment years in question, the assessee had manufactured tubular poles claiming benefit of notification no. 2339 dated 22.10.1996, read with notification no. 1223 dated 22.5.1998. In the course of the assessment proceedings, the assessee claimed set off of tax paid on purchase of raw materials used in the manufacture of tubular poles. The assessing officer rejected the claim on the reasoning that the assessee had not raised any such claim in its return and, therefore, it was not permissible to grant the same at the stage of assessment. The first appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund can not be forfeited under Section 29-A(2) of the Act. (iii) Whether the Tribunal having not considered that with raw material purchased after paying the purchase tax was consumed in the manufacture of tubular poles that is notified goods being Iron & Steel as per notification No. 1223 dated 22.05.1998, the assessing was right in denying the set off under Section 4-BB of the Act since it was not claimed in the return but was claimed at the time of the assessment." 5. Learned Senior Counsel would submit, the reasoning of the assessing authority was completely erroneous, inasmuch as, there is no stipulation either under the Act, or under the relevant notifications, whereby the claim for set off must necessarily be made at the stage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and instead he paid full tax on the purchase of raw materials and charged full tax on sale of tubular poles. Having done that, the assessee clearly opted out of the set off scheme, which in any case, did not have mandatory force. Alternatively, it has been submitted that the dispute being canvassed by the assessee is purely academic, inasmuch as, there is no provision for the refund of the tax paid on purchase of raw materials. Having charged full tax on the sale of tubular poles, the assessee cannot claim any refund or adjustment of that amount against any other liability that may be standing against it. 9. Having heard learned counsel for the parties and having perused the record, in the first place, though it is true that the claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase or sale of raw material or packing material, from which the goods sold in the course of inter State trade or commerce were manufactured or packed: Provided that the amount of tax to be deducted under clause (a) or clause (b) shall not exceed the amount of tax payable separately under this Act or the Central Sales Tax Act, 1956." 11. Thus, in the first place, the set off is available with respect to the tax paid on purchase of raw materials used in the manufacture of notified goods. Second, such set off is to be availed by making deduction of that amount from the tax payable on the sale of notified goods. The tax on sale of tubular poles would have become payable at the time of sale of those goods by the assessee and, in any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoning given by the Tribunal apart, it does not appear possible to contemplate a situation where a claim of set off may have been raised by the assessee after it had failed to make a deduction of tax payable on the sale of tubular poles and it had charged full tax @ 4% on sale of tubular poles. 14. In view of the above, the question of law no. 1 is answered thus - notwithstanding full compliance made by the assessee, in payment of tax on purchase of raw material and charge of tax on sale of tubular pipes, it lost the right to claim the set off under Section 4-BB of the Act upon opting to charge full tax on sale of tubular pipes, instead of deducting the tax paid on purchase of raw material from the tax payable on the sale of tubular pipe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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