TMI Blog2010 (3) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case, the seller is not liable to pay the purchase tax. The purchase tax is always required to be paid by the purchaser and not by the seller. If the seller is not liable to pay the tax, the question of obtaining form 32 from the purchaser does not arise at all. This distinct has not been considered by the Additional Commissioner of Commercial Taxes. In favour of assessee. - S.T.A. No. 6 of 2009 - - - Dated:- 18-3-2010 - MANJUNATH K.L. AND KEMPANNA H.S. JJ. For the Appellant : S.S. Naganand, Senior Counsel for Just Law and S. Sriranga for the Respondent : Smt. Geetha Menon, Government Advocate, The judgment of the court was delivered by K.L. MANJUNATH J.- Though the appeal was admitted, the substantial que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same, the assessee filed an appeal before the Joint Commissioner of Commercial Taxes. The Joint Commissioner of Commercial Taxes considering the invoices produced by the assessee came to the conclusion that the sale made by the assessee was not an inter-State sale, but it is a sale made to a registered dealer within the State. Accordingly, the appeal came to be allowed. 7. Later on the Additional Commissioner of Commercial Taxes came to the conclusion that the order passed by the Joint Commissioner of Commercial Taxes was prejudicial to the interest of the Revenue. Therefore, by exercising the powers under section 22A(1) of the Act, reopened the case. A show-cause notice was issued to the assessee. The assessee sent a detailed report. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Additional Commissioner requires to be set aside since there is no necessity for the assessee to pay the tax if the sale is made to a registered dealer within the State. 8. Per contra, the learned Government Advocate relying upon the rule 26(9)(a) of the Karnataka Sales Tax Rules contends that in order to claim exemption, the first seller is also required to produce form 32. The assessee having failed to furnish form 32, the Commissioner was justified in setting aside the order passed by the Joint Commissioner of Commercial Taxes and in restoring the order passed by the assessing officer. 9. In the backdrop of arguments advanced by the learned counsel for both the parties, what is required to be considered by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 32 from the purchaser does not arise at all. This distinct has not been considered by the Additional Commissioner of Commercial Taxes. 12. Therefore, we have to answer the substantial question of law in favour of the assessee and against the Revenue. Accordingly, we answer the same. 13. In the circumstances, the appeal is allowed. The order passed by the Additional Commissioner of Commercial Taxes exercising his powers under section 22A(1) of the Act dated September 30, 2008 is hereby set aside thereby the order passed by the Joint Commissioner of Commercial Taxes is restored. 14. If any amount is paid on account of the order passed by the Additional Commissioner, the assessee is entitled for refund. - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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