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TMI Blog2015 (9) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 Civil Writ Jurisdiction Case No. 4060 of 2015 Civil Writ Jurisdiction Case No. 4057 of 2015 Civil Writ Jurisdiction Case No. 4056 of 2015 Civil Writ Jurisdiction Case No. 2531 of 2015 Civil Writ Jurisdiction Case No. 19624 of 2014 Civil Writ Jurisdiction Case No. 19785 of 2014 Civil Writ Jurisdiction Case No. 19044 of 2014 Civil Writ Jurisdiction Case No. 9709 of 2014 Civil Writ Jurisdiction Case No. 19057 of 2014 Civil Writ Jurisdiction Case No. 19075 of 2014 Civil Writ Jurisdiction Case No. 7797 of 2014 Civil Writ Jurisdiction Case No. 2530 of 2015 Civil Writ Jurisdiction Case No. 14919 of 2013 Civil Writ Jurisdiction Case No. 18243 of 2014 For the Petitioner : Mr D V Pathy, Adv., Mr D B Gupta, Adv., Mrs Manju Jha, Adv. Mr R K Rastogi, Adv., Mr P K Mishra, Adv., Mr Abhi Shankar, Adv., Mr Manish Rastogi, Adv., Mr Prijat Saurav, Adv For the Respondent : Mr Sandip Kumar, G.A.-8, Mr Rajesh Ranjan, Adv., and Mr A Kumar, Adv JUDGMENT ( Per: Honourable Mr. Justice Ramesh Kumar Datta ) Heard learned counsel for the petitioners and learned Government Advocate No. 8 for the State. All the writ applications raise common issues and they have, accordingly, been heard together a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to tax in view of provisions of Section 15(5)(b) of the Act and, accordingly, the order of assessment dated 29.07.2014 passed by the Assessing Authority, was set aside. Similar orders were passed by the Commissioner of Commercial Taxes in many of the matters covered by the other writ petitions and in some of the other petitions, the said order has been followed by the Assessing Authorities of the Commercial Tax Department. Under the scheme of the Bihar Value Added Tax Act, 2005, Section 3 is the charging section which provides that every dealer whether registered under the erstwhile Bihar Finance Act, 1981 (since repealed) or under the present enactment would be liable to pay tax on the sale and purchase made by him. Section 15(5) is in the nature of exception to the general scheme of Taxation and provides option to certain class of registered dealers to pay in lieu of the tax payable by them, tax at the rate specified in Section 14, on the maximum retail price of such goods in the manner prescribed. Section 15(5) is quoted below :- "Compounding of tax liability in certain cases.-(5) (a) Notwithstanding anything to the contrary contained in the Act, the State Government ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or for that matter any other commodity of manufacturer / wholesalers / distributor/retailers was to be charged on the basis of the maximum retail price published on the package which was challenged by way of writ petitions and the same had been allowed by the High Court of Rajasthan and the State moved before the Supreme Court challenging the decision of the High Court of Rajasthan. The appeal by the State of Rajasthan was dismissed by the Supreme Court holding that such provision is ultra vires. The following paragraphs 44, 46, 55, 57 and 60 of the judgment of the Supreme Court are relevant for consideration:- "44. The pivotal question, therefore, which needs to be considered is whether the measure to which rate of tax is to be applied on single point transaction of sale of any formulation by the wholesaler to the retailer can be something notional which is not related to subject of tax or to say in other words, whether MRP to be chargeable subsequent to taxing event by a retailer when he sells the same goods to consumer can provide a basis which has nexus with taxable event to provide a valid measure to which rate of tax can be applied." 46. In the context of meaning a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the submission of learned counsel for the State is that there is a difference between the provisions of Rajasthan Sales Tax involved in the aforesaid decision and the provisions in the present matter in the sense that under the Rajasthan Act the provision of levy of Sales Tax on the MRP was mandatory where as under the Bihar Act it is only an option which has to be exercised by the concerned dealer and the petitioners having exercised such option, it is not open to them to turn around and challenge the orders passed by the respondents on the basis of the provisions of Section 15(5) of the Act. To our mind, such submission is fit to be rejected for the simple reason that it has been clearly held by the Apex Court in the case of Rajasthan Chemist Association (supra) that to bring the levy into existence which differs from sales subject to tax under the Act is beyond the legislative competence under Entry 54 List II of the Seventh Schedule. The notification to the extent it intends to levy tax on first point sale with reference to price which could be charged in respect of a subsequent sale which has not come into existence at the time liability of tax arises and is determined ex hy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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