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2015 (6) TMI 80 - GAUHATI HIGH COURT

2015 (6) TMI 80 - GAUHATI HIGH COURT - [2015] 84 VST 196 (Gau) - Review order - Determination of sale price - "First sale" - Assam Board of Revenue originally held that in view of the explanation 1 of section 8(1) of the Assam General Sales Tax Act 1993 the sale made by the petitioner cannot be construed as a first sale made by the petitioner to its dealers and is not taxable - Held that:- Quantity of goods sold to the petitioner by the IOC accounts for only 4.5 per cent of its total production, .....

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vy does not arise. In that view of the matter the view taken by the Assam Board of Revenue in review is untenable. - Decided in favour of assessee. - WP (C) 432/2008, 433/2008 and 436/2008. - Dated:- 11-3-2015 - Hon ble The Chief Justice (Acting) And Hon ble Mr Justice P. K. Saikia,JJ. For the Petitioner : Sri AK Saraf For the Respondents : Sri S Saikia JUDGMENT Heard the petitioner and the respondents. 2) The petitioner purchased petroleum products from the Indian Oil Corporation(IOC) and there .....

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re the Assam Board of Revenue. 4) The Assam Board of Revenue held that in view of the explanation 1 of section 8(1) of the Assam General Sales Tax Act 1993 the sale made by the petitioner cannot be construed as a first sale made by the petitioner to its dealers and is not taxable. 5) The tax department subsequent to the order of the Assam Board of Revenue made an application for review of its order on the ground that the decision in appeal is contrary to the ratio laid down by the Supreme Court .....

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ue was contrary to the law laid down by the Supreme Court, hence an application for review was filed. Accordingly the Assam Board of Revenue allowed the review petition and held that the sale effected by the petitioner to its dealers amounts to a first sale, since the sale price collected by the petitioner from its dealers is above 40 per cent of the sale price paid by the petitioner to the IOC, aggrieved by which this petition was filed by the Hindustan Petroleum Corporation Ltd, the petitioner .....

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the civil appeal disclose that the IOC purchased petroleum products from the Bongaigaon Refinery and Petrochemicals Ltd(BRPL) and effected the sale and while collecting the sale price from dealers the IOC also collected surcharge to be payable towards the oil-pool account to the Central Government. The question arose whether the surcharge collected should form part of the sale price or should that component be excluded from assessing the sale price? The next proposition under consideration was .....

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urt held that the IOC is liable to pay tax only on the difference between the purchase price and the sale price and not on the entire sale amount. 9) On close scrutiny of the said decision it discloses that the ratio laid down in the said decision does not appear to have any bearing on the question and issue involved in this petition. 10) In order to appreciate the facts and issue involved in this case it is necessary to advert to the provisions of section 8(1)(explanation 1) of the Assam Genera .....

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istribution or selling agent or for re-sale after repacking or subjecting the goods to any other process not amounting to manufacture and the price charged on re-sale exceeds the sale price by more than such percentage as may be prescribed in respect of such goods or class of goods, the re-sale by such other person shall subject to rules if any, framed in this behalf, be deemed to be at the first point of sale within the State . 11) The counsel for the petitioner has strenuously contended that t .....

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in common parlance. 12) The counsel for the petitioner has strenuously contended that both the conditions are cumulative in effect and both the conditions have to be fulfilled. Even if any one of the conditions is absent, the liability to pay tax does not arise under the explanation 1 despite the fact that the sale price may exceed 40 per cent of the purchase price. In this regard the counsel referred to the assessment order to show that the IOC had sold only 4.5 per cent of its total manufactur .....

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quantity of goods only. In that view if the purchase price forms substantial portion of the goods and the sale price collected in the second sale exceeds 40 per cent indeed it exceeded 40 per cent in the instant case it would attract tax. The decision of the Supreme Court has no application to the facts of the case in assessing the sale price. At the time when the decision in appeal was reserved for judgment and before the judgment was pronounced the decision of the Supreme Court was rendered. I .....

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