TMI Blog2015 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ued and that assessing the goods at the market value is untenable. - writ petition is of the year 2007 and it is admitted coming up for hearing after almost seven years. Therefore it is inequitable at this stage to drive the petitioner to have recourse to the remedy of appeal - Impugned order is set aside - Decided in favour of assessee. - W. P. (C) No. 4103 of 2007 - - - Dated:- 14-11-2014 - SREEDHAR RAO K. ACTG. C. J. AND UJJAL BHUYAN, J. Dr. A K Saraf, Senior Advocate, D Baruah, Ms. N Hawelia and Ms. M L Gope for the petitioner. The Standing Counsel Finance Department and R Dubey for the respondents. ORDER The petitioner entered into a contract with Sahara Airlines for supply of food articles for catering to passeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 78(1) is extracted hereunder for convenient reference. Where in respect of any taxable goods, carried in a goods vehicle or held in stock by any dealer or on his behalf by any other person, or held in the custody of any transporter, the prescribed authority or any authority to assist the Commissioner under sub-section (2) of section 3, has reason to believe that the value disclosed in invoice, challan, stock transfer memo or any other related document is lower than the prevailing market price or maximum retail price, in case of packaged goods by a difference of thirty per cent. or more of the prevailing market price or maximum retail price, as the case may be, such authority, for reasons to be recorded in writing, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting sales in excess of the fixed prices. It is therefore, open to the dealers to fix sale price of their goods depending upon various factors such as, purchase price, terms of sale, freight, creditworthiness, solvency of the buyers, their overheads and liquidity and the rapport with buyers. One dealer may make heavy turnover at lesser rate and make more profits with lesser overheads and another dealer may sell at higher rate and make less business with equal or less profit. It is common knowledge that in cases of cash sales, seller gives heavy discount to buyers. The Sales Tax Act cannot compel the sellers to sell their goods at a particular price. But section 2(1)(s)(ii) of the Act enacts that a dealer can be assessed on the turnover dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority according to his whims and fancies. While a particular authority may hold that variation of prices by 50 per cent. as abnormally low, another authority may say even variation of prices by 10 per cent. is abnormally low. 5. In the cited case, the observation discloses that there was a provision under the Act where the goods are undervalued. There was discretion for the assessing authority to review the sale price with reference to market price. However, in the said observation it is laid down that the determination of the market price of most of the goods is not possible. 6. The counsel for the petitioner with reference to the provisions of section 78 of the AVATAct and the decision in Delux Wines case [1990] 77 STC 373 (AP) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion under section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. 9. It is also a fact that the writ petition is of the year 2007 and it is admitted coming up for hearing after almost seven years. Therefore it is inequitable at this stage to drive the petitioner to have recourse to the remedy of appeal. 10. With regard to the levy of maximum penalty this court in Braja Lal Banik v. State of Tripura reported in [1990] 79 STC 217 (Gauhati) held that for levy of maximum penalty substantial reasons have to be shown. Here (in this case) no substantial reasons have been shown. In that view of the matter the petition is allowed. The impugned order is set aside. - - TaxTMI - TMITax - CST, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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