TMI Blog2008 (8) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in its ambit ancillary and incidental transactions? Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to allow exemption on the exchange of empty bottles to the dealer, though the definition of 'sale' as contained in section 2(h) of the U.P. Trade Tax Act did not exclude 'exchange' from its ambit? Held that:- Since the Tribunal has not examined the relevant material and has proceeded to decide the appeal on the assumptions and presumptions, it is desirable that the matter may be restored back to the Tribunal for fresh consideration in the light of the material available on record to find out the correct factual position in the light of account books and bill book, etc. Therefore, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of cold drink. The acceptance of the account books of the dealer-opposite party is not in dispute. However, certain exemptions claimed by the dealer-opposite party were disallowed by the assessing authority who determined the tax liability of the dealer-opposite party as Rs. 4,67,956 as against the admitted liability of Rs. 3,34,585.50. The matter was ultimately carried to the Tribunal. The Tribunal by the order under revision has allowed the appeal filed by the dealer-opposite party. In the memo of the revision the following questions have been sought to be raised by the Department: 1. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to hold that transportation charges and sales ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the customers. Subsequently, while making entry in the account books the transportation charges have been separately shown. On this basis the two authorities below found that the transportation charge shall form part of the turnover. The contention of the learned standing counsel for the Department with regard to question No. 1 is that the transportation charge is part of the turnover as defined under section 2(i) of the U.P. Trade Tax Act, 1948. The contention of the dealer-opposite party is that in view of the Explanation 1 to section 2(i) of the Act since the transportation charges have been charged separately, the transportation charges are liable to be excluded from the turnover. The Tribunal has accepted the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d back to the Tribunal for fresh consideration in the light of the material available on record to find out the correct factual position in the light of account books and bill book, etc. Therefore, so far as question No. 1 is concerned, the matter is restored back to the Tribunal for fresh consideration. Now, I take up question No. 2. The controversy involved therein is no longer res integra and has been set at rest by the apex court in Kalyani Breweries Ltd. v. State of West Bengal [1997] 107 STC 190; [1997] 8 JT 166 wherein it has been held that non-return of the empty bottles and forfeiture of the security amount, amounts to sale under the Sales Tax Act. It was a case under the Bengal Finance (Sales Tax) Act. The definition of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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