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Nabhi Brothers Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberS.J.C. No. 47 of 1958
Judge
Reported in[1960]11STC605(Orissa)
AppellantNabhi Brothers
RespondentCommissioner of Sales Tax
Appellant AdvocateP.V.B. Rao, Adv.
Respondent AdvocateG.K. Misra, Adv.
DispositionPetition allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........: 'whether on the facts and circumstances of the case the applicant is entitled to deduct from the sale price of the goods the following seven items under section 2(h) of the orissa sales tax act:-(1) postage incurred in correspondence and v.p. parcels and otherwise.(2) bombay sales tax on vehicles and spare parts.(3) transit insurance on vehicles.(4) body repair.(5) t.a. and battas.(6) railway freight on vehicles.(7) forwarding charges and incidental charges collected by the appellant from its customers.2. mr. p.v.b. rao, learned counsel on behalf of the petitioner only confined himself to items 6 and 7 and did not press the items 1 to 5 at the final hearing of this petition. the facts are these : the petitioner is a registered dealer under the orissa sales tax act bearing registration.....
Judgment:

G.C. Das, J.

1. This is an application under Sub-section (2) of Section 24 of the Orissa Sales Tax Act (Act XIV of 1947). This Court by its order dated 10th November, 1959, called upon the Tribunal to state a case for its decision. The sole question raised was : 'Whether on the facts and circumstances of the case the applicant is entitled to deduct from the sale price of the goods the following seven items under Section 2(h) of the Orissa Sales Tax Act:-

(1) Postage incurred in correspondence and V.P. parcels and otherwise.

(2) Bombay sales tax on vehicles and spare parts.

(3) Transit insurance on vehicles.

(4) Body repair.

(5) T.A. and battas.

(6) Railway freight on vehicles.

(7) Forwarding charges and incidental charges collected by the appellant from its customers.

2. Mr. P.V.B. Rao, learned counsel on behalf of the petitioner only confined himself to Items 6 and 7 and did not press the Items 1 to 5 at the final hearing of this petition. The facts are these : The petitioner is a registered dealer under the Orissa Sales Tax Act bearing registration No. G.A. 272 and deals in motor cars and spare parts etc. For the quarters ending 30th September, 1950, to 31st March, 1953, the petitioner filed certain returns under the Sales Tax Act and his books and accounts as produced by him were accepted as correct by the Sales Tax Authorities. The assessee claimed exemption in respect of the items mentioned above under Section 2(h) of the Sales Tax Act. The Sales Tax Officer did not allow these exemptions. Hence the petitioner filed two appeals before the Assistant Collector of Sales Tax who by his order dated 9th July, 1954 and 1st November, 1954, confirmed the aforesaid assessments. Against this order the assessee filed a revision before the Collector of Commercial Taxes which consequent upon the Amending Act was transferred to the file of the Tribunal as a regular second appeal. The only question for consideration was if the selfsame dealer can exclude the charges made by him while purchasing the goods and not while selling the goods. The Tribunal negatived this contention of the petitioner whereupon he filed an application under Sub-section (1) of Section 24 to refer the above question of law to this Court. That petition having been dismissed, the present petition under Sub-section (2) of Section 24 was filed before this Court, which called upon the Tribunal to state a case for its opinion. Accordingly the Tribunal had stated a case.

3. The facts appear to be admitted. The 'sale price' has been defined in Section 2(h) of the Orissa Sales Tax Act. We are concerned with Clause (a) of Section 2(h) which reads as follows:-

'Sale price' means the amount payable to a dealer as valuable consideration the sale or supply of any goods, less any sum allowed as cash discount according to ordinary trade practice but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before delivery thereof, other than the cost of freight or delivery or the cost of installation when such cost is separately charged.

4. The petitioner's whole contention was that since he had charged railway freight on vehicles separately in his bills issued to his customers, he is entitled to the deductions. The Tribunal was of opinion that if the petitioner has paid freight charges and such other charges as has been claimed in effecting delivery of goods to his customers, which are not included in the sale price, but were incurred on behalf of the purchaser he could claim deductions of such charges by virtue of Section 2(h)(a) since all such charges incurred by the petitioner were under the contract of agreement itself. But such charges cannot be excluded from the price received by the petitioner from his customers although in calculating the price from his customers, he has shown them separately in the bills drawn. The assessment has proceeded on the footing that the appellant is a stockist and indents vehicles, motor accessories and motor parts from Bombay and sells them. Both the Assessing Officer as also the first Appellate Authority have concurrently held that postage, Bombay sales tax, transit insurance, railway freight, which they have dealt under one head, as claimed of railway freight, are not those incurred by the appellant while selling the goods to his customers. From a plain reading of the section it appears that the clear intention of the Legislature was that the cost of freight or delivery or cost of installation when separately charged is to be excluded from the 'sale price'. No authority has been cited before us to show that in spite of the express words used in the section the freight and the other things would be inclusive of the sale price when they are separately charged. Admittedly the petitioner had charged separately the railway freight on the vehicles as also the forwarding charges and incidental charges. The learned standing counsel on behalf of the Sales Tax Authorities did not seriously oppose this application. Thus we are of opinion that the 'sale price' does not include the cost of freight or delivery or the cost of installation when such cost is separately charged. Accordingly we must answer the question in the affirmative.

5. The petition is allowed, but there would be no order for costs. The petitioner is entitled to get back the sum of Rs. 100 in deposit with the Sales Tax Authorities.

R.L. Narasimham, C.J.

6. I agree.


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