9911796707
TMI Blog2011 (2) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and learned Government Pleader for the respondent, and have also gone through the impugned order. Section 6(5) of the Act provides for payment of presumptive tax at 0.5 per cent of the turnover if the dealer not being the first seller of goods has an annual turnover of below Rs. 50 lakhs. The petitioner is engaged in the business of purchase and sale of medical oxygen in the State. The petitioner supplies cylinders to medical oxygen producing companies for the companies to fill up the cylinders with oxygen and sell the quantity filled to the petitioner through invoices. Medical oxygen purchased in cylinders is distributed to various customers and the petitioner collects back the cylinders again for refilling. For the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leader. On going through the Tribunal's orders, we find that the Tribunal has concluded that the import of cylinders by the petitioner is not only in violation of section 6(5) of the Act but also in violation of rule 58(18) of the Rules, inasmuch as form 16 cannot be used for transport of goods by a registered dealer which the petitioner is. Therefore the question has to be considered with reference to the relevant provisions of section 6(5) of the Act and also definition of the terms "importer" and "business" given under sections 2(xxii) and 2(ix) of the Act, respectively. These provisions are extracted hereunder for easy reference: "6. (5) Notwithstanding anything contained in sub-section (1), but subject to sub-section (2), any reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 6(5), it is clear that a dealer who does not effect first taxable sale of goods within the State is entitled to pay presumptive tax if his turnover is 50 lakhs or below. "Importer" is defined as any person who obtains or brings taxable goods from any place outside the State or country for the purpose of business. Even though "business" is given a very wide meaning as is clear from the definition clause, the question is whether the term "business" contained in the definition of "importer" takes in purchase of goods for use as capital goods. In our view, the term "business" referred to in the definition clause of "importer" for the purpose of exclusion from the purview of section 6(5) is only trading. In other words, a person impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs supplied in the course of sale of medical oxygen will amount to transfer of right to use the goods on which tax is payable. We do not want to deal with the nature of arrangements made between the petitioner and the customers in the course of sale of medical oxygen in the cylinders belonging to the petitioner and the collections he is making, because these are matters arising in the course of assessment in which the assessing officer is free to levy tax on all transactions exigible to tax. However, we do not think the liability to pay tax on rental charges, if any, collected by the petitioner in the course of sale of medical oxygen will render the petitioner liable for penalty under section 47(6) of the Act in respect of the purchase of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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