TMI Blog2009 (11) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accordingly, we hold that the assessing officer should re-examine the claim of the assessee with regard to deduction of tax from the total taxable turnover and pass orders on merits after giving opportunity to the respondent-assessee and in accordance with law. We allow this revision petition in part and remit the matter to the assessing officer for fresh consideration. - 59 of 2006 - - - Dated:- 18-11-2009 - MANJUNATH K.L. AND ARAVIND KUMAR , JJ. ORDER:- The order of the court was made by ARAVIND KUMAR J. The assessee is a trading company who had filed its annual returns for the period from April 1, 2003 to March 31, 2004 declaring a total turnover of Rs. 7,18,72,700. During the course of assessment, the business uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is now assailed by the Revenue in this revision petition contending that the burden was on the assessee to prove the fact that, in fact the tax had been collected for the said period and this obligation not having been discharged by the assessee, assessee was not entitled for the deduction as claimed. We have heard Smt Geetha Menon, the learned Government Advocate for the petitioner and Sri Chidanand Urs, the learned counsel appearing for the respondent. The question of law that arises for our consideration is as follows: Whether, in the facts and circumstances of the case, the Tribunal is justified in allowing the deduction on the amount of tax collected as per rule 6(4)(h) of the Karnataka Sales Tax Rules, 1957? Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that under rule 6, the total turnover of a dealer is determined as enumerated therein. However, in the facts and circumstances of the present case, the authorities, i.e., the assessing officer as well as the intelligence wing of the Revenue, having come to a factual finding that the invoices/sales bills produced before the authorities by the assessee do not depict as taxes having been collected. The burden was cast on the assessee to prove the fact that it had in fact collected the sales taxes on those bills covered from the period April 1, 2003 to November 30, 2003. We see from the records that the assessing officer has neither examined this issue calling upon the assessee to prove this fact nor the assessee has proved this fact by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase [1994] Supp (2) SCC 572, which reads as follows: Applying the said proposition, the Tribunal held that even though the bills issued by the dealer in this case did say specifically that the price charged was inclusive of tax it cannot be held that he has collected the tax. We are of the opinion that the additional requirement envisaged in Spencer Co. Ltd. [1970] 26 STC 283 (Mys) is not correct in law. Whether a dealer has discharged the burden that is laid upon him by the statute is a question of fact, to be decided in each case with reference to the facts and material in that case. It is not a matter of law nor can the mode of proof be reduced to a proposition of law. Sub-section (2) or sub-section (1) of section 10 of the Amend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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