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Ramgopal Bapulal Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number M.C.C. No. 248 of 1983
Judge
Reported in[1986]62STC258(MP)
AppellantRamgopal Bapulal
RespondentCommissioner of Sales Tax
Appellant Advocate Mandora, Adv.
Respondent Advocate S.R. Joshi, Government Adv.
DispositionApplication allowed
Cases ReferredCommissioner of Sales Tax v. Ramswaroop Banwarilal
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....of the value of rs. 1,59,802 together with certificate of undertaking to account for all such sales and sales tax liability. the assessee had furnished such claims in respect of other sales pertaining to different agents also and similar statement of accounts with declarations. it is contended that so far as the sales effected through m/s. n. a. trading company, neemuch, who are also registered dealers, the assessing authority did not grant exemption and ultimately the tribunal in its order held that as the appellant has not established that in all these transactions the n. a. trading company has been assessed to tax, therefore, the assessee cannot claim exemption. on these facts it is contended that the question of law that arises is as to whether the department was bound to follow.....
Judgment:

G.L. Oza, Ag. C.J.

1. This is an application submitted by the assessee under Section 44(2)(b) of the M.P. General Sales Tax Act for a direction to the Board of Revenue to make a reference to answer the questions of law which according to the applicant arise out of the order of the Tribunal.

2. The facts necessary for disposal of this application are that the assessee had effected sales of poppy seeds of the value of Rs. 1,59,802 through adatiyas (agents) M/s. N. A. Trading Company, Neemuch, holding a valid registration certificate. It is alleged that in accordance with the instructions issued by the Sales Tax Commissioner a practice was prevalent that the principal is exempted from payment of tax if the agent's certificate of undertaking the responsibility for payment of tax is produced. According to the assessee, he had furnished such a statement of account, called in local commercial language as adat pana or adat patta from the agent M/s. N. A. Trading Company, Neemuch, in respect of sales of poppy seeds of the value of Rs. 1,59,802 together with certificate of undertaking to account for all such sales and sales tax liability. The assessee had furnished such claims in respect of other sales pertaining to different agents also and similar statement of accounts with declarations. It is contended that so far as the sales effected through M/s. N. A. Trading Company, Neemuch, who are also registered dealers, the assessing authority did not grant exemption and ultimately the Tribunal in its order held that as the appellant has not established that in all these transactions the N. A. Trading Company has been assessed to tax, therefore, the assessee cannot claim exemption. On these facts it is contended that the question of law that arises is as to whether the department was bound to follow the practice which was being followed in all cases on the basis of instructions issued by the Commissioner and as in the case of the assessee also in cases of transactions of other agents exemption was granted. Under these circumstances, it is contended that the questions that arise are :

(1) Whether, on the facts and in the circumstances of the case, the assessee could be held liable to be taxed when the sales were made through a commission agent who is a registered dealer, despite the absence of evidence that the adatiya had paid tax ?

(2) Whether it was necessary for the assessee to produce evidence that the tax was paid by the adatiya ?

Although in the application submitted by the petitioner the questions have not been framed in the above manner but it is conceded by the learned counsel that these are the only questions relevant for decision.

3. Learned Government Advocate, on the other hand, contended that the Tribunal had disposed of the matter on the ground that the assessee had not produced any material to show that the commission agent has been assessed to tax in respect of these transactions. According to the learned Government Advocate, it is no doubt true that the agent or the principal both could not be taxed for the same transaction and therefore if the assessee wanted exemption, it was necessary for him to produce evidence to the effect that the agent had already been assessed to tax in respect of these transactions. Learned Government Advocate, however, did not dispute that instructions were issued by the Commissioner on the basis of which a practice prevailed in the department but it was contended that this case has been disposed of merely on the ground that there was no evidence to show that the agent was taxed in respect of these transactions although the learned Government Advocate frankly conceded that a prayer was made by the assessee to that effect which was rejected.

4. It is not disputed that such a practice prevailed and that is also what appears from the decision in Commissioner of Sales Tax v. Ramswaroop Banwarilal (1981) 14 VKN 146 (MP). It is, therefore, clear that in the case in hand whether the Board should depart from the practice and call upon the assessee to prove that the agent was taxed is a question of law which deserves decision.

5. In this view of the matter, therefore, in our opinion, the application is allowed and it is directed that the learned Tribunal shall state the case and make a reference for answering the questions to this Court:

(1) Whether, on the facts and in the circumstances of the case, the assessee could be held liable to be taxed when the sales were made through a commission agent who is a registered dealer, despite the absence of evidence that the adatiya had paid tax?

(2) Whether it was necessary for the assessee to produce evidence that the tax was paid by the adatiya ?

In the circumstances, so far as this petition is concerned, parties are directed to bear their own costs.


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