TMI Blog1990 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the year in question was acting as commission agent on behalf of its principals, one of them being the first petitioner and claims to have sold certain quantity of khandsari sugar manufactured by the first petitioner, as its selling agent. Although a number of reliefs have been claimed through this writ petition but during the course of hearing learned counsel for the petitioners stated that principal relief is directed against the assessment order passed against the second petitioner for the assessment year 1976-77, in so far it brings to tax under sub-section (2) of section 3-D of the U.P. Sales Tax Act, 1948, the turnover of sales of khandsari sugar which the second petitioner had sold, as the selling agent of the first petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale or purchase of commodities named in clauses (a) and (b) of that section or any other goods, which the State Government may, by a notification exempt. Under the proviso to that section the State Government is authorised to impose conditions to which the exemption may be made available. In other words, the provisions contained in the proviso entitles the State Government to grant exemption in respect of certain commodity either unconditionally or on certain conditions to be set out in the notification. The State Government issued another notification under section 3-D of the Act being Notification No. ST-II-6204/X-1012-72 dated 29th September, 1972, providing, inter alia, that with effect from 1st October, 1972, the turnover of fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notification issued under that section which we have noted earlier. It was further argued that in any case the petitioners were entitled to adduce evidence on the question whether the disputed turnover of sale was duty-paid or not and the assessing authority acted illegally by refusing to look into the evidence produced in the form of letter to that effect. On the other hand, the learned Standing Counsel appearing for the respondents disputed the correctness of these submissions. He argued that the exemption under section 4 was hedged with certain conditions contained in the notification under which the exemption was being claimed by the petitioners and unless it had been shown to the satisfaction of the assessing authority that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purchase of the goods notified under sub-section (1); the purchaser purchasing for himself or as an agent for another is an unregistered dealer and the sale is made by a dealer for himself or as a selling agent for another. On these conditions being satisfied, then on the turnover of such sale, the selling dealer would be liable to pay sales tax. Before a case is caught within the mischief of sub-section (2) of section 3-D, one of the essential ingredients is that the sales must have been effected to a person other than a registered dealer. In other words, such sales should be to unregistered dealers. A perusal of the impugned assessment order shows that there is no whisper much less any finding in the assessment order that the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessment order that a dealer in a given case had failed to rebut the presumption contained in clause (b) of subsection (7) of section 3-D and had not filed the requisite form or declaration or certificate as prescribed under the Act or Rules. We have already observed that the impugned assessment order lacks in this respect and does not contain any such finding. In fact the assessing authority never applied its mind in that regard. The sole basis of the impugned assessment is that the second petitioner has failed to furnish form III-C(5) as envisaged under sub-rule (7)(e)(ii) of rule 12-B framed under the Act. On this score alone the impugned assessment cannot be sustained. As there is no finding that the disputed sales were to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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