Rajasthan High Court - Jodhpur
M/S Deo Karan Shri Chand vs Cto Nagore on 11 January, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 1159 / 2003
M/S Deo Karan Shri Chand, Merta - City, District Nagaur, Propt.
Sh. Shrichand S/o Sh. Hemraj, tehsil Merta City, District Nagaur.
----Petitioner
Versus
The Commercial Taxes Officer, Special Circle I, Jodhpur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. N.K. Jain.
For Respondent(s) : Mr. Anil Bhansali.
Mr. Bhagirath Patel.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 11/01/2018 This revision petition under Section 86 of the Rajasthan Sales Tax Act, 1994 ('the Act'), is directed against the judgment dated 03.01.2003 passed by the Rajasthan Tax Board, Ajmer ('the Tax Board'), whereby, the appeal filed by the respondent - Assessing Officer against the order dated 06.09.1999 passed by the Deputy Commissioner, Appeals, Ajmer, has been partly allowed and the reassessment order dated 20.2.1993 has been partly restored.
Initially, assessment order under Section 10 of the Act pertaining to assessment year 1989-1990 was passed by the Assessing Officer on 9.7.1991, wherein, goods amounting to Rs.53,07,355/- sold by the petitioner based on form 'H' were exempted under provisions of Section 5(3) of the Central Sales Tax Act, 1956.
Whereafter, notice under Section 12 of the Act was given to (2 of 7) the petitioner, inter alia, alleging that said sale, escaped assessment, and ultimately reassessment order dated 20.2.1993 was passed holding the petitioner to pay tax and raised a total demand of Rs.6,57,999/- including a demand pertaining to the subject-matter of present revision amounts of Rs.2,08,000/- and interest at Rs.1,75,560/-.
Feeling aggrieved, the petitioner filed an appeal before the Deputy Commissioner, Appeals. The Deputy Commissioner, Appeals, by his order dated 15.9.1999, came to the conclusion that in terms of notification dated 7.3.1994, the appellant was entitled for exemption and consequently, allowed the appeal filed by the petitioner.
Feeling aggrieved, the respondent - Assessing Officer filed an appeal before the Tax Board. The petitioner filed cross- objections to the said appeal.
The Tax Board by its impugned judgment, came to the conclusion that the petitioner did not fulfill the conditions of the notification dated 7.3.1994 and, therefore, the petitioner was not entitled for exemption as allowed by the Deputy Commissioner, Appeals, and consequently, reversed the order passed by the Deputy Commissioner, Appeals, upheld the order passed by the Assessing Officer pertaining to the sale of Til (Sesame seed), and upheld part of the order passed by the Deputy Commissioner, Appeals, pertaining to sale of Jira (Cumin).
It is submitted by learned counsel for the petitioner that the Tax Board committed error in coming to the conclusion that the Deputy Commissioner wrongly granted benefit of the notification (3 of 7) dated 7.3.1994 to the petitioner qua the sale of sesame seeds. It was submitted that the petitioner sought exemption by claiming the sale made by him as sale in the course of export based on form 'H', the Assessing Officer while passing the reassessment order, came to the conclusion that as the goods purchased from the petitioner were directly not exported, it was not entitled to the said benefit of exemption based on sale in the course of export. The Deputy Commissioner, Appeals, though no reasons were recorded for applying the notification dated 7.3.1994, apparently on account of the fact that the goods so purchased were sold in the course of inter-State commerce or trade, granted exemption. However, the Tax Board by its impugned order by again relying on the aspect that the sale undertaken by the petitioner was not in course of export, reversed the order of the Deputy Commissioner, Appeals, without adverting to the requirements of notification dated 7.3.1994, and therefore, the same deserves to be quashed and set aside.
Reliance was placed on the judgment of this Court in Commercial Taxes Officer Circle 'D' Jodhpur v. M/s Bhawani Exports: S.B. Sales Tax Revision Petition No.580/1999, decided on 13.10.2008.
Learned counsel appearing for the respondents supported the order passed by the Tax Board. It was submitted that it was the specific case of the petitioner that it was entitled to the exemption as the goods were sold by it in the course of export, which fact was found against the petitioner and, therefore, it was not entitled to any exemption as claimed.
(4 of 7) Further submissions were made that the notification dated 7.3.1994 has no application to the facts of the present case and, therefore, the revision petition deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The Assessing Officer while passing the reassessment order dated 20.2.1993, inter alia, observed as under:-
^^vxj O;olk;h ds Lo;a ds }kjk fons'kh Øsrk ls djkj vFkok vkns'k izkIr djds eky Ø; djds lh/kk Hkkjr ds ckgj fu;kZr fd;k tkrk rks O;olk;h dh vfUre [kjhn gksrh ftl ij /kkjk 5, esa Ø; dj ugha yxrk ijUrq ogkWa ij fu;kZrd dks Hkkjr ds ckgj fu;kZr djus ds fy, viathd`r O;olkbZ;ksa dks Ø; fd, x, fry esa ls eky lIykbZ fd;k x;k gS tks O;olk;h ds gkFk esa /kkjk 5¼3½ ds vuqlkj vafre [kjhn ugha gksus ls Ø; dj ls eqDr ugha gS rFkk ,slh [kjhn ij jk- fc-d-v- dh /kkjk 10 ds dj fu/kkZj.k vkns'k esa Ø; dj yxus ls cp x;k Fkk blfy;s jk-fc-d-v- dh /kkjk 12 esa izkjEHk dh xbZ dk;Zokgh iw.kZr;k oS/kkfud gSA O;olk;h dk /kkjk 12 dh dk;Zokgh dks voS/kkfud crykus dk dksbZ vkSfpR; ugha gSA** The Assessing Officer came to the conclusion that the petitioner had not transferred the goods based on the agreement with the exporter and, therefore, it was not entitled to the benefit of exemption.
The Tax Board by its impugned order again came to the same conclusion as under:-
^^gekjs le{k cgl ds nkSjku Hkh O;ogkjh us ;g izekf.kr ugha fd;k gS fd mlus mDr eky dh [kjhn fcØh fons'kh Øsrk ds lkFk fd;s x;s vuqcU/k ds vuqlj.k esa dh gS ftldh otg ls mlus :- 5307355@& ds fry dk foØ; fd;k gSA fo}ku mik;qDr] vihYl us rF;ksa ,oa fof/kd fLFkfr dh fcuk tkap fd;s gh vkns'k ikfjr dj Ø; dj@foØ; dj ls NwV iznku dh gS tks mfpr ugha gSA O;ogkjh ds (5 of 7) fo}ku vf/kd`r izfrfuf/k }kjk m)fjr U;kf;d n`"VkUrksa ij llEeku fopkj.k fd;k x;k fdUrq rF;ksa dh fHkUurk ds dkj.k mDr U;kf;d n`'VkUrksa ls O;ogkjh dks dksbZ enn ugha feyrh gS D;ksafd O;ogkjh us mDr eky dk foØ; vUrZjkT; foØ; ds nkSjku gksuk Hkh izekf.kr ugha fd;k gS blfy, jkT; ljdkj dh vf/klwpuk fnukad 7-4-94 dh "krksZa dh ikyuk ugha gksus ls /kkjk 5, ds vUrxZr ns; Ø; dj ls NwV dk ykHk O;ogkjh dks ugha fey ldrk gSA mik;qDr] vihYl us vf/klwpuk fnuakd 7-4-94 ds vUrxZr nh x;h "krksZ dh ikyuk dks lqfuf'pr fd;s fcuk gh vkns'k ikfjr fd;k gS blfy, :- 5307355@& ds fcUnq ij mik;qDr] vihYl ds vkns'k dks fujLr dj dj fu/kkZj.k vf/kdkjh ds vkns'k dks cgky fd;k tkrk gSA** As already noticed, hereinbefore, the Tax Board only in one line made observation that the sesame seeds were not sold in the course of inter-State trade or commerce and, therefore, the assessee was not entitled for the benefit of notification dated 7.3.1994.
The notification dated 7.3.1994 reads as under:-
"F.4(8)FD/Gr.IV/94-51 dated 7.3.1994 S.P.181.-In exercise of the powers conferred by sub-section(2) of Section 4 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act No.29 of 1954), the State Government being of the opinion that it is expedient in the public interest so to do, hereby exempts from tax the purchase of all goods made upto 31st March(1995) by a registered dealer liable to pay tax under Section 5A of the said Act on the following conditions; namely;-
(i) that the goods so purchased have been sold in the course of inter-State trade or commerce; and
(ii) that any tax on the purchase of the said goods, if charged or collected, shall be paid to the State Government, and if paid to the State Government, shall not be refunded."
From the perusal of the above facts, it is apparent that the (6 of 7) petitioner had transferred the goods to M/s. H. Bheda & Co./Bheda Brothers/Jayant Kumar & Co. at Bombay and the said firms ultimately exported the goods.
The petitioner, at the relevant time in absence of notification dated 7.3.1994, took a plea that the goods sold by it were exempt as the same were transferred in the course of export in terms of Section 5(3) of the Central Sales Tax Act, 1956.
The said plea raised by the petitioner was not accepted by the Assessing Authority, however, when the appeal filed by the petitioner was pending before the Deputy Commissioner Appeals, the notification dated 7.3.1994 was issued, exempting the purchase of all goods made upto 31.8.1994 by a registered dealer liable to pay tax under Section 5-A on the condition that goods so purchased have been sold in the course of inter-State trade or commerce.
Based on the said notification, though no discussion took place in the order dated 15.9.1999 passed by the Deputy Commissioner, Appeals, the reassessment order was set aside by the Deputy Commissioner, Appeals.
The Tax Board, again though reiterated the factual finding that the goods were not sold in the course of export and, therefore, the petitioner was not entitled for the benefit of exemption, while dealing with the notification dated 7.3.1994 cursorily mentioned that the petitioner did not fulfill the conditions and it cannot be said that the goods were sold in the course of inter-State trade or Commerce.
The said finding of the Tax Board is factually incorrect, (7 of 7) inasmuch as, though the petitioner failed to prove that the goods were sold in the course of export, there is no denial of the fact that the goods were transferred by the petitioner to the dealers, stationed at Bombay, and, therefore, the said goods were sold in the course of inter-State trade or commerce entitling the petitioner to exemption as granted under notification dated 7.3.1994.
This Court in D.B. Civil Writ Petition No.1650/1993, decided on 1.2.1995, set aside an assessment order, which was passed before the notification dated 7.3.1994 came into existence on account of the sale having been made during course of inter-State trade of commerce.
Whereafter, the said order was followed in the case of Bhawani Exports (supra), wherein, the plea raised by the Department pertaining to the interpretation of the notification dated 7.3.1994 was rejected and the assessee, therein, was held entitled to the benefit of such exemption.
In view of the above discussion, the revision petition filed by the petitioner is allowed. The order dated 3.1.2003 passed by the Rajasthan Tax Board to the extent that appeal filed by the respondent-Assessing Officer has been accepted, is quashed and set aside.
No order as to costs.
(ARUN BHANSALI)J. Sumit-1