TMI Blog1997 (11) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... rce from time to time. It filed its return for the 4 quarters ending on March 31, 1994 showing the gross turnover of Rs. 1,11,94,918.16 and taxable turnover of Rs. 4,36,705.62 and paid sales tax of Rs. 47,466 including turnover tax of Rs. 7,263.20. The respondent No. 1 (Commercial Tax Officer, Bally Charge) completed the assessment under the Bengal Finance (Sales Tax) Act, 1941 (in short, "the 1941 Act") adding to the gross turnover an additional amount of Rs. 1,03,32,398.98 being the sale proceeds of REP licences. The assessment order further disclosed that the respondent No. 1 disallowed the entire sales of the applicant made to the registered dealers, on the ground of non-production of declaration forms in form XXIV-A. The applicant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les; thus there being no default on the part of the applicant, interest cannot be demanded on the amount of tax on the sale proceeds of REP licences. Therefore, being aggrieved by assessment and the demand notice, the applicant filed an appeal. But the respondent No. 2, the appellate authority, rejected the appeal and affirmed the order of assessment. According to the applicant, the demand of tax on the sales of REP licence and of interest on the same are illegal, invalid and against the protections enshrined in articles 14 and 255 of the Constitution of India. It prays for quashing the impugned orders of the respondents Nos. 1 and 2 on a declaration that such imposition of tax is violative of the aforesaid articles of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale of them constitutes sale within the purview of sales tax statute. Undisputedly, during the period under consideration the applicant got Rs. 1,03,32,318.98 as sales proceeds of REP licences. Mr. S.K. Chakraborty, learned advocate for the applicant challenges the assessment on the ground that no tax could be levied on such sales. In his opinion, the finding of the Supreme Court in the said abovementioned case cannot have any application to the returns filed for the 4 quarters ending on March 31, 1994. He argues that the ratio of this decision can utmost apply prospectively. He points out that the judgment of the Supreme Court was delivered on May 1, 1996 and that both the assessment period and the date of filing returns were long befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act, 1994 unless the assessment and other actions are already barred by limitation. In the instant case, the assessment of the 4 quarters ending on March 31, 1994 not being barred on the date of assessment (i.e., June 27, 1996), the assessing authority is quite within his legal competence to assess sales tax on the sale of REP licence on the basis of the said decision of the Supreme Court. 5.. Shri Chakraborty has next argued that if what has been propounded by the Supreme Court in the aforesaid case is considered to be effective retrospectively, it will discriminate between one dealer and the other. He has elaborated his point by saying that there may be some dealers whose assessment for the 4 quarters ending on March 31, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, contends that the applicant cannot seek equity in the matter of payment of tax. We find nothing to differ with the contention of Shri Saha. Moreover, it is not necessary that the dealer should be enabled to pass to the purchaser the incident of the sales tax for the sales of REP licences in order that it might be a tax on the sale of goods. "It is not an essential characteristic of sales tax that the seller must have the right to pass it on to the consumer" (vide [1984] 55 STC 1 (SC) at page 35 (Hoechst Pharmaceuticals Ltd. v. State of Bihar). 7.. In disputing the liability to pay interest on the arrear of sales tax it has been argued on behalf of the applicant that the interest can be demanded if the tax is deliberately with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oment the assessing authority made the assessment and the interest on the amount of tax on the gross turnover would start accruing from the date prescribed for furnishing the correct return in accordance with section 10. The case before us is clearly covered by the principle laid down in the said reported decision so far payment of interest on and from the date of that judgment is concerned. As regards the period between date prescribed for furnishing the return and the date immediate before the date of judgment, the position is however distinguishable. It is undisputed that on the date of filing of the return neither the applicant nor the Revenue had any idea that the REP licences are goods within the meaning of the sales tax statute. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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