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Commercial Taxes Officer Vs. Badri NaraIn Sita Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Sales Tax Reference No. 52 of 1979.
Judge
Reported in[1980]45STC433(Raj)
AppellantCommercial Taxes Officer
RespondentBadri NaraIn Sita Ram and anr.
Appellant Advocate J.D. Agarwal, Additional Government Adv.
Respondent Advocate R.C. Ghiya, Adv.
DispositionPetition dismissed
Cases ReferredBombay v. Scindia Steam Navigation Co. Ltd.
Excerpt:
.....of the revenue and when the only point raised in the revision application on behalf of the assessee was conceded on behalf of the revenue, then we fail to appreciate as to how it could be held that any question of law arises out of the order of the board of revenue. the board of revenue has remanded the matter to the assessing authority as desired by the petitioner and the assessing authority cannot complain about the order passed by the board of revenue......the order passed by the deputy commissioner, appeals-i, and filed a revision petition before the board of revenue. it was argued by the assessee before the board of revenue that the udaipur depot of m/s. jayant extraction industries, jamnagar, has already been assessed to tax in respect of the hydrogenated oil sold by the jamnagar firm to the assessee and the tax in respect thereof had already been deposited. the learned counsel appearing for the revenue before the board of revenue stated that the matter may be remanded to the assessing authority and if it is proved that on the quantity of hydrogenated oil purchased by the assessee, the sales tax has already been realised from m/s. jayant extraction industries, jamnagar's depot at udaipur, then tax should not be realised from the.....
Judgment:

Dwarka Prasad, J.

1. This reference application under Section 15(3A) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act'), has been filed by the Commercial Taxes Officer, Special Circle I, Jaipur (hereinafter called 'the assessing authority'), and arises in the following circumstances:

2. M/s. Badri Narain Sita Ram, Chand Pole Bazar, Jaipur (hereinafter referred to as 'the assessee'), was assessed to sales tax for the period from 26th April, 1971, to 22nd July, 1971, on 22nd December, 1971, on the ground that the assessee had imported hydrogenated vegetable oil from M/s. Jayant Extraction Industries, Jamnagar, in the State of Gujarat, and the first sale of hydrogenated oil in this State took plate at the hands of the assessee. The case of the assessee was that the hydrogenated oil was tax-paid when it reached the hands of the assessee as the assessee had purchased the same from the Udaipur depot of M/s. Jayant Extraction Industries, Jamnagar, although it was admitted that the goods were directly sent from the factory at Jamnagar to the assessee at Jaipur. According to the assessee, as the tax had already been paid at the point of sale by the Udaipur depot of the Jamnagar firm to the assessee, sales tax could not be collected again at the point of sale of the goods by the assessee. The assessing authority held that the assessee had directly purchased the goods from the Jamnagar firm, which amounted to an inter-State sale, and the first sale thereof in the State of Rajasthan took place when the goods were sold by the assessee and, as such, the assessee was liable for payment of sales tax on the sale of the hydrogenated oil purchased by him from the Jamnagar firm.

3. On appeal, the Deputy Commissioner (Appeals-I), Commercial Taxes, Jaipur, remanded the matter to the assessing authority to redecide the question of sale price as in his view the sale price should be redetermined by adding the percentage of profit to the purchase price. The question as to whether the assessee would be entitled to get credit for the amount of tax already paid by the Udaipur depot of the Jamnagar firm was left for consideration by the assessing authority. The assessee felt dissatisfied with the order passed by the Deputy Commissioner, Appeals-I, and filed a revision petition before the Board of Revenue. It was argued by the assessee before the Board of Revenue that the Udaipur depot of M/s. Jayant Extraction Industries, Jamnagar, has already been assessed to tax in respect of the hydrogenated oil sold by the Jamnagar firm to the assessee and the tax in respect thereof had already been deposited. The learned counsel appearing for the revenue before the Board of Revenue stated that the matter may be remanded to the assessing authority and if it is proved that on the quantity of hydrogenated oil purchased by the assessee, the sales tax has already been realised from M/s. Jayant Extraction Industries, Jamnagar's depot at Udaipur, then tax should not be realised from the assessee in respect of the very same goods. On this concession made by the learned counsel for the assessing authority, the Board of Revenue accepted the revision petition and remanded the case to the assessing authority, as desired by the learned counsel for the revenue. This order was passed by the Board of Revenue on 4th March, 1977. Thereafter, the assessing authority filed an application before the Board of Revenue under Section 15(1) of the Act for making a reference to this Court and as the said application was not disposed of within the prescribed period, the present reference application has been filed in this Court.

4. The learned counsel for the revenue desires that a reference may be called for and the following questions may be got referred to this Court:

(1) Whether the movement of hydrogenated vegetable oil from Jamnagar (Gujarat) to Jaipur (Rajasthan) in pursuance of contracts was not inter-State sale of M/s. Jayant Extraction Industries, Jamnagar?

(2) Whether that inter-State sale terminated at any earlier point other than the delivery by present non-petitioner No. 1 at Jaipur (Rajasthan)?

(3) Whether, without intra-State sales at Udaipur, the Udaipur depot of M/s. Jayant Extraction Industries was legally competent to realise sales tax as if there were intra-State sales within the State of Rajasthan?

(4) Whether, under the facts and circumstances of the case, that the sales tax was collected at wrong point without intra-State sales, the petitioner was debarred to levy sales tax at the correct point and on the correct dealer?

5. As we have already observed above, the order of the Board of Revenue dated 4th March, 1977, is based upon the concession made before it by the learned counsel for the revenue and, as a matter of fact, no question has been decided by the Board of Revenue. It has been held by their Lordships of the Supreme Court in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. [1961] 42 I.T.R. 589(S.C.). that when a question is neither raised before the Tribunal nor considered by it, it will not be a question arising out of the order of the Tribunal and the High Court would be acting beyond its jurisdiction in dealing with any such question. It is settled law that a question of law can be said to arise out of the order of the Tribunal only if it is dealt with by the Tribunal or is raised before it though not decided by the Tribunal. But if the question of law is neither raised before the Tribunal nor is dealt with by it in its order', the same cannot be said to arise out of the order of the Tribunal. The learned counsel submits that on the facts of the case the questions sought to be raised fairly arise, but as the questions were neither raised nor argued before the Board of Revenue, nor have been decided by it, we are unable to call for a reference in respect thereof. As we have already pointed out above, the order of the Board of Revenue is based merely on the concession made before it by the learned counsel appearing on behalf of the revenue and when the only point raised in the revision application on behalf of the assessee was conceded on behalf of the revenue, then we fail to appreciate as to how it could be held that any question of law arises out of the order of the Board of Revenue. We are also unable to appreciate as to how the assessing authority can be said to be aggrieved from the order of the Board of Revenue when it had already made a concession in that respect belore the Board of Revenue. The Board of Revenue has remanded the matter to the assessing authority as desired by the petitioner and the assessing authority cannot complain about the order passed by the Board of Revenue. It will, however, be open to the parties to raise such questions before the assessing authority, as may be open to them under the law to be raised before it.

6. In the result, we find no substance in this reference application and the same is dismissed.


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