TMI Blog2014 (1) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... stion whether sale is made at factory gate, or the petitioner's agents are selling the sugar into different local areas where on the entry of non-levy sugar in that local area, entry tax is payable, which the petitioner is required to collect from its selling agents and deposit, failing which penalty is leviable, is question of fact - authorities, however, are still required to decide the petitioner's objections that the situs of sale is at factory gate and not in any other local area. The matter requires investigation of facts by the competent authority after considering the petitioner's objections - Following decision of Mawana Sugars Ltd. v. Deputy Commissioner, Commercial Tax & Ors. [2013 (6) TMI 28 - ALLAHABAD HIGH COURT] - Decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Goods Act, 2008. 2. Whether a manufacturer is liable for provisional assessment under Section 10 of the U.P. Tax on Entry of Goods, Act 2008. Respondents to file their reply by way of counter affidavit within three weeks from today. Rejoinder, if any, within one week thereafter. Place the matter on board on 11th of July, 2011. The conclusion of proceedings will be subject to final orders in this writ petition." In paragraphs 13 to 20 of the counter affidavit, it is stated as follows:- "13. That with regard to the contents of paragraph no.24 of the writ petition it is submitted that the impugned notice has been issued in order to verify the nature of transaction to which the petitioner is obliged to give proper reply. In case it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy been given in the preceding paragraph of this counter affidavit. 19. That with regard to the contents of paragraph nos.36 to 40 of the writ petition it is submitted that as the impugned order is a show cause notice and the transaction in question as stated by the assessing officer has not been examined as the petitioner has not filed his reply the present writ petition is premature as no final order has been passed by the assessing officer pursuant to the impugned notice, nature of transaction has yet to be examined by the assessing officer which cannot be examined under the writ jurisdiction, as such the writ petition is not maintainable. 20. That in reply to the contents of paragraph nos.41 and 42 of the writ petition it is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. To state it differently, if on a true construction of the provisions of the said two sections, the respondent has no jurisdiction to initiate proceedings or make an inquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the same." 37. Similar view was taken by the Apex Court in the case of Calcutta Discount Co. Ltd Vs. Income Tax Officer, (1961) 41 ITR 191, wherein the reassessment proceedings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding initiated on the basis of impugned notices are illegal and an exercise in futility and therefore impugned Notice Nos. 428 and 429 dated 4.9.2009 issued by respondent no. 1 are hereby quashed. The authorities are restrained from proceeding any further, in pursuance of such notices. The writ petition succeeds and is allowed." The observations in paragraph 36 of the judgment in Mawana Sugars Ltd. (Supra) is in the context of findings in which the Division Bench held that the petitioner company could not be compelled to make deduction of entry tax at source for sales made to persons/ dealers within the same local area. For the respondents, it is stated that transaction in question has not been examined, as the petitioner has not fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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