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TMI Blog2007 (4) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... under articles 226 and 227 of the Constitution of India for quashment of the circular dated October 30, 2004 issued by the Commissioner, Commercial Tax. Along with the aforesaid prayer many other ancillary alternative prayers were made. It was put forth in the writ petition that petitioner No. 1 company is engaged in construction of roads and petitioner No. 2 is a shareholder of the company. The assessment for the period April 1, 2001 to March 31, 2002 was completed by the Assistant Commissioner, Commercial Tax, Jabalpur on January 29, 2005 and tax amounting to Rs. 11,57,017 was demanded. In the assessment order respondent No. 1 had denied the claim of set-off of tax paid in respect of purchase from M/s. Shriram Enterprises, Indore; M/s. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the circular had not shown any sale in the return. Because of the same the setoff to the petitioner on the purchase of bitumen had not been granted whereas the set-off in respect of purchase of bitumen from the Indian Oil Corporation had been granted as sufficient proof was produced in that regard. Various aspects have been highlighted to show how no tax had been paid by the concerned companies and, therefore, how the appellant is not entitled to the benefit. It is urged that under rule 3(5) of the Madhya Pradesh Commercial Tax Rules, 1995 the Commissioner is empowered to issue such directions which are necessary in discharge of the duties to be performed by the officers and as the circular is in consonance with the rules the same c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 STC 605 it has been held as under (page 606): ". . . according to the definition of 'tax-paid goods' in section 2(rr) of the Act, once it is established that the raw material or incidental goods have been purchased from a registered dealer, that shows that the goods are tax-paid. By virtue of clause (iv) of rule 20-C of the Madhya Pradesh General Sales Tax Rules, 1959, once the purchasing dealer produced the bill of registered dealer then it had to be presumed that the goods had suffered the incidence of tax. Once the applicant, i.e., the purchasing dealer, produced the bill issued by the registered dealer then his burden was discharged and he could not be held responsible or be forced to collect the material in order to ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer to the Constitution Bench decision rendered in Filterco v. Commissioner of Sales Tax [1986] 61 STC 318 wherein the Constitution Bench while dealing with determination by Commissioner of disputed question the Commissioner held that only five out of the 26 specimens could be classified as "cloth" and granted exemption from tax under entry 6 of Schedule I to the Act to those 5 varieties and remaining 21 samples would not fall within the exemption but were liable to tax at the rate of 10 per cent opined that the High Court should not have dismissed the writ petition on the ground that petitioner had an alternative remedy. In that context their Lordships expressed the opinion as under (page 322): ". . . The order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate to refer to section 2(w) of the 1994 Act. It defines "taxable turnover". It reads as under: "2(w). 'Taxable turnover' in relation to any period means that part of a dealer's turnover for such period which remains after deducting therefrom-- (i) the sale price of goods declared tax-free under section 15 or exempted in whole under section 17; (ii) the sale price of goods mentioned in Parts II to VII of Schedule II which are in the nature of tax-paid goods in the hands of such dealer; (iii) the sale price of unginned cotton as specified in Part I of Schedule II and such other goods in the said Part as the State Government may from time to time, by notification, specify, sold to a registered dealer wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is exempted in whole from payment of tax subject to the condition that such exemption is available only to such registered dealer; and (ii) the goods manufactured by a registered dealer in his new industrial unit in respect of which such dealer is availing of the facility of exemption from payment of tax in whole under any notification issued under the Act repealed by this Act or under this Act in pursuance of any scheme of the State Government formulated and enforced before or after the commencement of this Act for grant of incentives for the establishment of new industrial units in the State." Mr. Alok Pathak, learned Government Advocate for the State submitted that the Commissioner has the authority under rule 3 of the Madhya Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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