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The State of Mysore Vs. Hanjarimal Saremalji - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberS.T.R.P. No. 31 of 1972
Judge
Reported in[1975]36STC206(Kar)
ActsCentral Sales Tax Act - Sections 6(1A); Central Sales Tax (Amendment) Act, 1969 - Sections 10(1); Mysore Sales Tax Rules, 1957 - Rule 38
AppellantThe State of Mysore
RespondentHanjarimal Saremalji
Appellant AdvocateM.P. Chandrakantaraj Urs, Government Adv.
Respondent AdvocateB.V. Katageri, Adv.
Excerpt:
.....as prescribed under section 458 cr.p.c., - proceedings were quashed. - the commercial tax officer was of the opinion that the assessee had failed to establish that he had not collected the sales tax and, accordingly, rectified the assessment......stated in that case that after the central sales tax (amendment) act, 1969, came into force, the sales tax officers who had earlier assessed assessees in accordance with the decision in yaddalam lakshminarasimhiah setty's case : [1965]2scr129 , would be competent to issue to those assessees notices under rule 38 of the mysore sales tax rules, 1957, proposing to rectify their assessments on the ground that the earlier assessments suffered from mistakes apparent on the record, and that before reassessing the assessees, the officers should afford a reasonable opportunity to the assessees to satisfy them that the assessees had not collected the sales tax.5. in the instant case, the mere fact that the bills mentioned the price as inclusive of sales tax and did not separately mention any.....
Judgment:
ORDER

Srinivas Iyengar, J.

1. This is a revision petition filed by the State against the order of the Sales Tax Appellate Tribunal, Bangalore, in S.T.A. No. 286 of 1970 dated 23rd May, 1972.

2. The Commercial Tax Officer sought to rectify the original assessment that had been made for the year 1964-65 (5th November, 1964, to 24th October, 1965) consequent upon the retrospective amendment of the Central Sales Tax Act and introduction of section 6(1A). The assessee would be exempt in respect of inter-State sales of cotton if he was able to show that he had not collect the sales tax as provided under section 10(1) of the amending Act of 1969.

3. The bills produced by the assessee indicated that the price charged was 'inclusive of the tax'. The bills did not separately mention the Central sales tax. It does not also appear that any amount had been separately credited in the accounts in respect of the sales tax, if any, collected. The Commercial Tax Officer was of the opinion that the assessee had failed to establish that he had not collected the sales tax and, accordingly, rectified the assessment. This was confirmed by the Deputy Commissioner of Commercial Taxes. On a further appeal to the Tribunal by the dealer, the Tribunal was of the opinion that as the matter related to the period between 10th November, 1964, and 9th June, 1969, the Commercial Tax Officer could rectify tea mistake if it was an apparent one and that it was not open to him to rectify it by making a fresh enquiry or bringing on record fresh material. It also observed that because the bills did not specify any Central sales tax but only specified the price as inclusive of sales tax, it cannot be inferred that the assessee had collected the tax. Accordingly, the appeal was allowed and the rectification made by the Commercial Tax Officer was set aside.

4. In this revision petition, it is urged by Shri Chandrakantaraj Urs, Senior Government Advocate, that the view taken by the Tribunal that no enquiry could be made or fresh material brought on record with a view to rectify the original assessment, is not correct in the light of the decision of the Supreme Court in Commercial Tax Officer v. Sri Venkateswara Oil Mills : [1973]3SCR742 . The contention urged by him is sound and must be accepted. The Supreme Court stated in that case that after the Central Sales Tax (Amendment) Act, 1969, came into force, the Sales Tax Officers who had earlier assessed assessees in accordance with the decision in Yaddalam Lakshminarasimhiah Setty's case : [1965]2SCR129 , would be competent to issue to those assessees notices under rule 38 of the Mysore Sales Tax Rules, 1957, proposing to rectify their assessments on the ground that the earlier assessments suffered from mistakes apparent on the record, and that before reassessing the assessees, the officers should afford a reasonable opportunity to the assessees to satisfy them that the assessees had not collected the sales tax.

5. In the instant case, the mere fact that the bills mentioned the price as inclusive of sales tax and did not separately mention any amount as tax would not by itself be conclusive material. The dealer appears to have had intra-State sales on the same date which were not subject to tax. A comparison of the prices charged for those sales with the prices charged for inter-State sales on the same dates or the correspondence between the dealer and the purchaser would be relevant material to arrive at a finding whether the price charged for inter-State sales did include any amount by way of sales tax or not. What has got to be ascertained is whether any amount by way of sales tax is intended to be passed on to the buyer as a bargain in the transaction. The process by which the matter could be determined has been explained by this court in Spencer & Co. Ltd.'s case ([1970] 26 S.T.C. 283.). It is therefore clear that the matter has to be investigated into and all relevant material gathered before arriving at a decision whether the assessee had not collected the sales tax.

6. In this view, the order of the Tribunal and of the authorities below are set aside and the matter is remitted to the assessing authority to make a fresh order in the light of this order. No costs.

7. Ordered accordingly.


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