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TMI Blog2019 (8) TMI 1828X X X X Extracts X X X X X X X X Extracts X X X X ..... nterim orders of this Court dated 11.07.2006 in both the writ petitions are directed to be refunded - petition disposed off. - W.P.(C) No. 1566 of 2006 and W.P.(C) No. 1567 of 2006 - - - Dated:- 14-8-2019 - K.S. Jhaveri Chief Justice And K.R. Mohapatra, J. For the Petitioner : M/s. Niranjan Paikray, Mr. T.K. Satpathymr. T.K. Satpathy R.K. Jena, D.K. Lenka, Mr. T.K. Satpathy. For the Respondent : ASC C.T. ORDER Heard learned counsel for the parties. By way of these two writ petitions, the petitioner has challenged the suo motu orders of revision dated 20.9.2005 for the years 1999-2000 and 2000-2001 vide Annexure-4, passed by the Assistant Commissioner of Sales Tax, Puri Range, Bhubaneswar U/R 80 of the Orissa Sales Tax Rules, 1947, wherein the orders of assessment passed for the years 1999- 2000 and 2000-2001, allowing revised returns after taking into consideration the trade discount given by the petitioner were revised and fresh demand of tax were raised. The petitioner has also challenged the appellate orders of the Commissioner of Sales Tax dated 13.01.2006 vide Annexure-1 upholding the order passed vide Annexure-4. The main ground on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mote one s own trade does qualify for deduction as a Trade discount. (ii) The Hon ble Supreme Court in the Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulum v. Advani Oerlikon(P) Ltd., reported in 45 STC 32 held that : A Trade Discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The trade discount does not enter into the composition of the sale price, but exists apart from and outside it and a prior to it. It is immaterial that the definition of sale price in section 2(h) of the Central Sales Tax Act does not expressly provide for the deduction of trade discount from the sale price. As the sale price is arrived at after deducting the trade discount, no question of deduction from the sale price of any sum by way of trade discount arises. Having regard to the nature of a trade discount, there is only one sale price between the wholesale dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. There is only one contract between the parties, the contract being that the goods will be supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Sales Tax Rules,1957, the discount not having been given when the bill was made out or the goods sold, rule 6(a) would not apply. Held that even where the discount was allowed at the end of the year when the accounts were settled, according to the normal trade practice, it was a permissible deduction from the turnover of the dealer. (vi) The Hon ble High Court of Andhra Pradesh in the case of Cynamid india Limited v. Commissioner of Commercial Taxes reported in 1128 VST 289 held that the dealer had shown certain deduction in bills and therefore the target discount given by it for the entire year when accounts were finally settled was a permissible deduction from the turnover of the dealer. (vii) The Hon ble High Court of Orissa in case of State of Orissa v. M/s. Hindusthan Agency (unreported judgment) by accepting the view of Kerala High Court in the case of Deputy Commissioner v. Advani Oerlikon (P) Ltd reported in 37 STC 1 held that wherever there is a trade discount-if what has been granted here and claimed as a deduction is a trade discount-is ultimately relatable to an agreement express or implied and where any express agreement as found in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit notes were eligible for deduction from the total turnover. (xi) The Hon ble Supreme Court in case of M/s. Maya Applicances (P) Ltd now known as Preethi Kitchen Appliances Pvt. Ltd. v Addl. Commissioner of Commercial Taxes Others on the issue of scheme of discount claimed under the Karnatak Value Added Tax Act. The Hon ble Supreme Court relying on the judgment of Southern Motors held that the liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissible deductions from the total turnover. Among them are all amounts allowed as discounts. Such a discount must, however, be in accord with the regular trade practice of the dealer or the contract or agreement entered into in a particular case. The expression the tax invoice or bill of sale issued in respect of the sales relation to such discount shows the amount allowed as such discount is not happily worded. The words in respect of the sales relating to such discount cannot be construed to mean that the discount would be inadmissible as a deduction unless the tax invoice pertaining to the goods originally issued shows the discount. This is a matter of ascertainment. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Out of the said amount the petitioner has already paid Rs.3,88,65,746.00. The balance amount to be paid by the petitioner is Rs.32,053.00. The appeal filed by the petitioner has been dismissed by the Commissioner. Against that order this writ petition has been filed. Considering the aforesaid facts of the case and considering the fact that the petitioner has already paid Rs.3,88,65,746.00, this Court stays the balance demand of Rs.32,053.00. This stay order will continue for a period of three months from today. Misc. Case is disposed of. W.P.(C) No.1566 of 2006 Misc. Case No.1234 of 2006 Looking into the facts and circumstances of the case, it appears that the petitioner was assessed under Section 12(4) of the OST Act and refund of Rs.18,77,810.00 was found to be payable to the petitioner. After the order was passed, suo motu revision proceedings were initiated and thereafter by virtue of the assessment order the petitioner was directed to pay an amount of Rs.4,50,77,218.24. Out of the said amount the petitioner has already paid Rs.4,39,97,104.00. The balance amount to be paid by the petitioner is Rs.10,80,114.24. The appeal filed by the petitioner has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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