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2015 (7) TMI 1003 - BOMBAY HIGH COURT

2015 (7) TMI 1003 - BOMBAY HIGH COURT - TMI - Stay application - Interstate sale - Validity of Tribunal's order - Held that:- All that has influenced the Tribunal in this case is the fact that though the Petitioner/Appellant has filed 'C' and 'F' Forms but looking at the detailed order of the Assessing Officer it is prima facie clear that the transfer is not branch transfer but outside Maharashtra sale. The other fact that has influenced the Tribunal is the huge outstanding tax liability. Howeve .....

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and dispatching goods in order to meet the same will not qualify for the transaction being termed as an intrastate sale but an interstate sale attracting the tax liability under the CST Act. That will have to be determined. One cannot proceed on the footing that the Assessing Officer's conclusion is the only one which can be ultimately reached. Merely because a detailed order of assessment has been passed on the basis of a purchase transaction directly by the customers with all specifications a .....

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hearing of the Appeals. - matter remanded back - Decided in favour of assessee. - Writ Petition No. 6533 of 2015, Writ Petition No. 6534 of 2015 - Dated:- 21-7-2015 - S C Dharmadhikari And G S Kulkarni,JJ. For the Appellant : Mr V Sridharan with Mr Sanghavi with Mr Puneeth Ganapathy with Ms Niyati Hakani For the Respondents : Mr P G Sawant, AGP ORDER P. C. These Petitions are directed against the orders passed by the Maharashtra Sales Tax Tribunal. Though these orders are passed on the applicati .....

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anything and on factual matters. Therefore, with the consent of both sides, we dispose of these Petitions finally. 4) It would be convenient only to refer to the facts in Writ Petition No. 6533 of 2015. The Petitioner therein is a registered dealer. It is a private limited company engaged in the business of manufacturing and sale of electrical steel and operates from its factory in District Nashik in the State of Maharashtra. The second Respondent to this Writ Petition has passed an order of as .....

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States in terms of the statutes prevailing there, the tax liability has been cleared. The Petitioners produced the evidence with regard to those payments in the respective depots. The second Respondent has treated these sales as predetermined sales and therefore interstate sales liable to Central Sales Tax in the State of Maharashtra. That is how a demand was raised by the second Respondent in the sum of ₹ 11,56,46,969/-. That is in pursuance of the assessment order dated 27th June, 2013. .....

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Act. The Petitioner was first advised to appeal before the Central Sales Tax Appellate Authority under section 20(1) of the CST Act but having found that the Appeal thereunder was incompetent and not maintainable, it was dismissed on 2nd July, 2014. 6) It is in the above circumstances that the Petitioner has approached this Court in its Writ Jurisdiction. 7) Mr. Sridharanlearned Senior Counsel appearing for the petitioner would submit that the Tribunal will have to determine as to whether the co .....

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States on the same goods. The Petitioner has contended before the Tribunal that in the present case, the relevant facts, as noted in the section, would be indeed relevant. The Petitioner has discharged the VAT liability in the transferee State by treating such sale as local sale and of the same goods. In the circumstances, this factual assertion of the Petitioner not being disputed, there was no necessity of calling upon the Petitioner to deposit a sum of ₹ 3,53,12,000/-. To that extent, .....

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ther state would not be required to meet any tax demand in the State where the Central Sales Tax Act is sought to be invoked. However, in the event it being held that the CST Act was applicable and attracted, then, it would be very difficult for the State in which such adjudication is concluded to recover the tax from other State where it is already paid. Mr. Sridharan submits that to meet such an eventuality, section 18A was brought in the statute and upon determination of the issues then it wi .....

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it must, while granting the stay, consider whether the Assessee has made deposit of the tax under the general Sales Tax Law of the State concerned. 9) Even prior to this legal position, Mr. Sridharan would submit that the Judgments of the Hon'ble Supreme Court in the case of Oil India Ltd. vs. The Superintendent of Taxes and Ors. reported in (1975) 1 SCC 733, Union of India vs. K. G. Khosla and Co. Ltd. reported in (1979) 43 STC 457 and Shriram Refrigeration Industries Ltd. and Anr. vs. Com .....

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les is determined at ₹ 858,37,68,170/-. Out of this, interstate sales under section 8(1) are allowed at ₹ 647,62,19,099/-. The assessment order refers to the input tax and what he has determined, according to the assessment order, is that there is a claim that there is a transfer to branches in other States. However, as far as that is concerned, the assessment order records that during the verification and interaction with dealer, it was revealed that potential customers of the deale .....

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es effected by the concerned branch/agent, transfer should not be in exact quantities of sales effected by agent to indivisible customer and transfer should be on ad-hoc basis in anticipation of orders. Thus, the corelation of ultimate sale qua the transfer should be absent. The sales should have been effected by branch with least intervention of Head Office. It is applying these tests that Mr. Sawant would submit that the Assessing Officer has levied and assessed the tax liability. The order of .....

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r before it is entitled to unconditional stay. Having regard to these findings and further that in the absence of requisite details, the Assessing Officer concluding the matter in terms of the CST Act that the Tribunal's orders deserve to be upheld. It is an interim and tentative conclusion and which must not be disturbed in Writ Jurisdiction unless it is found to be patently illegal and erroneous. 11) With the assistance of both Counsel, we have perused the Writ Petition and all Annexures t .....

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not a Appeal which the Petitioner Appellant preferred after having exhausted the remedy of Appeal before the Joint commissioner of Sales Tax, which is the first appellate authority. This is an Appeal directly to the Tribunal and that is why section 18A of the CST Act was invoked and applicable. In the circumstances and if this was present to the mind of the Tribunal, as is apparent, then, the Tribunal should have been aware of sub section (5) of section 18A of the CST Act. There, the Tribunal is .....

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to be finally decided. All records of assessment are before the Tribunal. The Tribunal will have to apply its independent mind and come to a conclusion as to whether as held by the Assessing Officer placing of orders in advance and dispatching goods in order to meet the same will not qualify for the transaction being termed as an intrastate sale but an interstate sale attracting the tax liability under the CST Act. That will have to be determined. One cannot proceed on the footing that the Asses .....

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proof of the relevant facts in terms of section 18A(5) having been satisfied. In the instant case, the relevant facts including the discharging of the tax liability under the local or general Sales Tax Law has been proved by producing the relevant records including Challans of payments. In the circumstances, we do not find that there was any warrant for imposing any further condition and deposit of a huge sum of ₹ 3,53,12,000/-. 12) In these circumstances, we direct that there will be a st .....

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