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TMI Blog2024 (3) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... period. However, Section 5-E of the Act provides for unspecified period and the appeal was allowed to that extent. There is no question of law framed by the petitioner for entertaining the Tax Revision Case. An order of remand for re-assessing the factual possession cannot be considered as an erroneous decision on the question of law. As seen from the order of the Tribunal, the Tribunal has not decided on any issue on the question of law. It has fairly considered the issues before it and passed the orders partly allowing the appeal and remanding back to the Revisional Authority. There is no question of law framed by the petitioner for entertaining the Tax Revision Case. An order of remand for re-assessing the factual possession cannot be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bottle reaches the manufacturer to fill up the drinks afresh after cleaning. 3. The Deputy Commissioner (CT), No. II Division, Vijayawada on an examination of the assessments, finalized by the CTO, Benz Circle noticed that the assessing authority wrongfully allowed exemption on turnovers relating to (1) Bottle breakage charges (2) Levy of Rental Charges at 5% on bottles and craters and accordingly revised the assessments. 4. The revisional authority while revising the case observed that when the bottles are returned, some of them were found damaged. These damaged bottles were no more useful. The assesse raised debit note on the purchasing dealer once in a month for these damaged bottles as reimbursement of loss to it. The Revisional Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealers viz., Sri Sujaya Agencies, Vijayawada, who markets nearly 60% of the soft-drinks manufactured by the assesse company. On such examination, it was found that the wholesale dealer was not collecting any breakage charges from its retailers even though the bottles are broken in the hands of the retailer dealer. It was therefore observed that the dealer company is collecting the entire expenditure on bottles from the whole sale dealers by raising separate debit notes on them and not including that expenditure in the sale value of soft drinks. Secondly, the revisional authority also found fault with the system of lease of bottles by the manufacturer to the whole sale distributors. The bottles are received by the distributors only for onwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iler and observed that the cost of new bottles is far less than the amount that has been collected by the appellants from the wholesaler by way of compensation for breakages and the said fact has made him to draw an inference that breakage collection charges of bottles are nothing but sale turnover in another form. It was further observed that even though the chain of transactions from manufacturer to retailer is a continuous one, the revisional authority has not enquired the relationship of the nature of transactions between the wholesaler and retailer and the revisional authority has drawn an inference basing on the probabilities but he has not delved the matter deep into the roots to understand the nature of transaction, especially the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an error by observing that generally in all transactions of lease, there will be a specific period which is absent in this case. Section 5-E of the Act is as follows ; 5E. Tax on the amount realised in respect of any right to use goods.- Notwithstanding anything contained in this Act; - (a) Every dealer who transfers the right to use any goods for any purpose, whatsoever, whether or not for a specified period, to any lessee or licensee for cash, deferred payment or other valuable consideration, in the course of his business shall, on the total amount realised or realisable by him by way of payment in cash or otherwise on such transfer or transfers of the right to use such goods from the lessee or licensee, pay a tax at the rate of eight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Andhra Pradesh [2013] VST 393 (AP), this Court held that the assessing authority ignored the terms and conditions between the parties and the fact that the tax can levy on the transaction as it existed in between parties and not on presume without any basis. The learned counsel appearing for the respondents placed reliance on State of Andhra Pradesh Vs. Business Forms Limited T.R.C. No. 83 of 1985, decided on 08.03.1994. This Court had an occasion to deal with the issue wherein the Tax Revision Case was filed against the order of the Sales Tax Appellate Tribunal remanding the matter back to the Revisional Authority for ascertaining the factual possession. This Court held that T.R.C. would not be maintainable, when the Tribunal has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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