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TMI Blog2024 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... t the earlier assessments as well as the notices of demand were set aside by the Hon ble Apex Court. The initial notices were issued in the year 1996 in all the cases including the earlier litigations to produce books of accounts and records in connection with the purchase and sale of their products. Subsequently in the month of March 1996, the petitioner company was asked to show cause as to why penal action should not be initiated. Subsequently, assessment order was passed in the month of July 2001 and appeal challenging such assessment order by the appellate company were dismissed in the month of April 2002. In the case in hand, the impugned assessment order shows that after the order of the Hon ble Apex court, the balance due was nil. However, taking recourse to sub-section 3 of section 22, the interest was imposed on the ground that amount due was paid subsequent to its due date. To summarise it is the contention of the assessing authority that though after the order of the Hon ble Apex court there was no balance due however, the entire due was paid subsequent to the date it has fallen due and therefore, interest was leviable under section 22(3) of the Act. The impugned decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Assam General Sales Tax Rule, 1993 (for short Rules 1993). IV. The petitioner company raised an objection to such proposition on the ground that the amount of surcharge collected on behalf of the Central Government is also included in the sale price and therefore, such sale price for the purpose of the Act, 1993 should be determined after deducting the amount of surcharge collected by the petitioner company on behalf of the Central Government, which had to be contributed to the Oil Pool Account . V. Such contention was not accepted by the Superintendent of Taxes and a show cause notice was issued for initiation of penal action on the ground that the petitioner company is liable to pay tax on the sale of products, purchased from the BRPL being selling agent, as per section 8 (1) (a) of the Act 1993 read with rule 12 of the rules 1993. A writ petition was filed before this court challenging such notices. VI. The writ petition was dismissed by a coordinate bench holding that the amount of surcharge collected by the petitioner company, even though passed onto the Oil Pool Account, had to be included in the sale price, as defined under section 2(34) of the Act, 1993. VII. Being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g aggrieved, a revision was preferred before the Commissioner of Taxes, Assam under section 36 (2) of the Act, 1993. However, such revision petition was also dismissed by the Commissioner of Taxes under its order dated 30.01.2008. XIII. Being aggrieved, six writ petitions being WP (C) No. 1279/2008, WP (C) No. 1281/2008, WP (C) No. 1278/2008, WP (C) No. 1282/2008, WP (C) No. /2008, WP (C) No. 1305/2008 were preferred by the Company and the Division Bench of this court by a common judgment dated 11.03.2015 passed in WP (C) 1279/2008, and other connected matters allowed the said writ petitions with the following determination and decisions:- A. The WP (C) No. 1282/2008 and WP (C) No. 1279/2008 were allowed on the ground that after de novo assessment, in terms of the decision of the Hon ble Apex Court, the authority found that there was nil demand for the assessment years and as such, there is no question of payment of interest for nil demand. B. WP (C) No. 1281/2008, WP (C) No. 1278/2008, WP (C) No. 1283/2008 and WP (C) No. 1305/2008, were once again relegated to the Superintendent of Taxes with a direction to verify and pass fresh orders in accordance with law under section 22 of AG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly made an attempt to mislead the court by not submitting the actual fact of the case before the high court. III. In terms of the determination made by this court in its judgment dated 11.03.2015, the assessing authority was only to ascertain the fact as to whether, there was any demand on account of tax after the order of Supreme Court. The Assessing Officer has found demand to be nil in the assessment order and therefore, in terms of this court s order, the Assessing Officer could not have issued notice demanding interest. It is also contended that the scope of the remand of the matter by the high court was limited only to examine as to whether the demand notice pertains to only interest or whether any tax was payable and if there is nil tax demand, no interest would have been levied . 5. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE RESPONDENTS Countering such argument Mr. Gogoi, learned standing counsel for the Taxation Department argues the following: I. The assessment was made and interest was rightly imposed in terms of the Section 22 of the AGST Act, 1993. He further submits that the Superintendent of Taxes had completed the reassessment for the period 1993-1994 to 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Apex Court. The determination made by the Hon ble Apex Court can be summarised as follows: I. A conjoint reading of section 8 (1) of the Act and explanations 1 and 2 clearly lead to a conclusion that the second point of sale was shifted as first point of sale, if resale price of a dealer exceeded 40% of the purchase price. In the case in hand, resale price of dealer exceeded 40% of the purchase price, therefore, the resale price was deemed to be first point of sale. II. Sub-section 1 of section 8 did not envisage double taxation in the same state. The appellant company had paid sales tax on purchase of petroleum products from BRPL. Under the scheme of the Act, 1993, the sales tax would be leviable only on the difference of resale price and purchase price, since under sub-section 1 of section 8 of the act, 1993, the tax is levied at the first point of sale. III. The appellant company had purchased goods from BRPL and admittedly paid sales tax on the said purchase. Therefore, the Indian Oil Corporation is under an obligation to pay sales tax only on the difference amount between the purchase price and the entire sales price. IV. Imposing sales tax on the entire amount resold wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22 of the Assam General Sales Tax Act, 1993. 11. Section 22 of the Act deals with payment of interest by dealer. The said provision mandates for payment of interest in the following circumstances: I. Sub section (1) of Section 22 deals with the situation where the assessee does not pay the tax as per the returns or if there is any deficit payment of tax, interest on deficit amount becomes payable. II. Sub-section 2 deals with the situation where after assessment if it is found that demand notice is issued and if there is any deficit payment which falls short of the amount claimed in the notice, the interest becomes payable. III. Sub-section 3 deals with the situation where the assessing authority finds that the turn over stated in the returns is found to be incorrect and the amount mentioned in the demand notice succeeding the assessment is more than 10% the interest becomes payable. 12. Section 16 of the Act, 1993 deals with payment of tax and return. The said provision envisages paynment of tax and submission of return in the following manner. I. Section 16 (2) mandates for payment of tax to be accompanied by a statement in prescribed form of the turnover of sales or of purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the entire due was paid subsequent to the date it has fallen due and therefore, interest was leviable under section 22(3) of the Act. 16. The appellate authority took a view that when this court under its order 11.03.2015 remanded the matter after reassessment the authority is within its competent jurisdiction to make assessment on its own. 17. The initial notices were issued in the year 1996 to produce books of accounts and records in connection with purchase and sale of their bill products and subsequently in the month of March 1996, the petitioner company was asked to show cause why penal action should not be initiated. Subsequently, assessment order was passed in the month of July 2001 and appeal challenging such assessment order by the appellate company were dismissed in the month of April 2002. The Hon ble Apex Court on 27.11.2006 set aside the aforesaid notices and assessments made. However, in between i.e., after the appellate order dated 22.04.2002 and prior to passing of the judgment by the Hon ble Apex court on 27.11.2006 the company on 05.06.2002 deposited the amount without prejudiced to the pending litigation also paid interest @ 10.5%. 18. However, as discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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