TMI Blog2005 (7) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... gory, the composition amount payable for 2000-2001 was 125 per cent of the tax paid in the financial year 1999-2000 subject to a minimum of Rs. 100 lakhs. 4.. On the same day, that is January 12, 2001, the State Government also issued a notification exempting from tax the sale of bullion by the Metals and Minerals Trading Corporation Ltd. (MMTC) or the Handicraft and Handloom Export Corporation (HHEC) or authorised nationalised banks to a registered dealer, to the extent the rate of tax thereon exceeds 1 per cent. 5.. In view of the above scheme and notification, the petitioner, who had its head office in Delhi and branch offices in several other cities, opened a branch office in Jaipur on January 16, 2001 and registered itself with the sales tax department in Rajasthan holding Registration Certificate No. 1451/01689. 6.. During the relevant assessment year 2001-02 the petitioner decided to purchase gold in Jaipur from Corporation Bank and opened an account with the said bank. The petitioner gave a fixed deposit of Rs. 10 crores to the said bank. 7.. The petitioner says that gold was purchased and resold by it on a daily basis in Jaipur. Since transactions in the sale and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought gold from Jaipur and sold it in Delhi. 12.. The respondents have filed a counter-affidavit in which it is stated that the petitioner was asked to prove that the sale of bullion acquired in Jaipur was made in Jaipur and such sales were not made in Delhi. The petitioner was apparently not able to convince the sales tax authorities in this regard, nor was it able to inspire confidence in them that the sales of bullion were effected in Rajasthan. This led the sales tax authorities to conclude that the bullion acquired by the petitioner in Jaipur was sold in Delhi, hence the liability imposed. 13.. Learned counsel for the parties were heard and judgment reserved on 7th April, 2005 on which date learned counsel for the respondents informed us that he would be filing an application in the case. However, since no application was preferred for quite some time, we listed the matter again on 17th May, 2005 when learned counsel for the respondents informed us that he has instructions not to file any application and the matter may be disposed of on merits. 14.. Having heard learned counsel for the parties, we are of the view that the respondents have misdirected themselves in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be discharged by proper evidence. This is quite clear from the decision of the Supreme Court in Union of India v. Garware Nylons Ltd. (1996) 10 SCC 413 wherein it was held in paragraph 15 of the Report, "The burden of proof is on the taxing authorities to show that the particular case or item in question is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority." 21.. That no one can be taxed by implication, inference or analogy was recently and quite clearly laid down by the Supreme Court in Commissioner of Central Excise v. Acer India Ltd. [2004] 137 STC 596 (SC); (2004) 8 SCC 173. In paragraphs 33 and 34 of the Report (paragraphs 31 and 32 in STC) , it was held "33. It is also a well-settled rule of construction of a charging section that before taxing a person it must be shown that he falls within the ambit thereof by clear words used as no one can be taxed by implication. 34.. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipur to accept large cash deposits. Some of the banks such as Centurion Bank, Bank of Rajasthan, Integral Urban Co-operative Bank, State Bank of Bikaner and Jaipur, etc., have separately indicated through letters that it is not possible for them to handle huge volumes of cash on a daily basis. Learned counsel for the petitioner stated before us that his client already has several Bank accounts in Jaipur but all of them put together cannot handle such a huge volume of cash. It is for this reason that the amounts have to be transferred to Delhi and deposited in banks in Delhi. There is sufficient evidence to show from the books of the petitioner (which have not been doubted, except to the extent noted above regarding the credibility of the transactions themselves) that cash deposits have actually been made in the banks in Delhi for which the petitioner has also paid handling charges. All these facts are verifiable, even though they may prima facie be hard to believe. 26.. Similarly, it has been stated by learned counsel for the petitioner that the compounded levy scheme in force in Rajasthan actually had an impact on the receipts of sales tax due to sale of bullion in Delhi. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as expected in law from the respondents was to show that sales of gold had taken place in Delhi and this could be done by having positive material in this regard rather than by wrongly inferring that because the petitioner was not able to prove sales of bullion in Rajasthan, it must be assumed that it sold bullion in Delhi. In the face of the fact that the sales tax authorities in Rajasthan had accepted the returns of the petitioner, it is not open to the respondents to take the conjectural view that they have taken. 30.. Learned counsel for the respondents also contended before us that the sales tax authorities in Delhi may be permitted to look into the matter again. We are unable to accede to this request. The respondents had adequate opportunity to properly investigate the issues and apply their mind as required by law but they have failed to do so. We have already mentioned that learned counsel for the respondents, at the conclusion of arguments on 7th April, 2005, said that he would be filing an application in the matter, presumably praying that the matter be remanded for de novo adjudication. No such application was filed and we were told that the matter may be disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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