Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s. Narendra Singh Bisht Versus The Commissioner, Commercial Tax, Uttarakhand And Another

2015 (12) TMI 1086 - UTTARAKHAND HIGH COURT

Revision petition - Whether on the facts and circumstances of the case, the learned Commercial Tax Tribunal was justified in law in confirming the order passed by the assessing authority holding that the revisionist is liable to pay the tax inspite of finding recorded that the first sale is effected by the respondent no.2 - Whether on the facts and circumstances of the case, the authority below was justified in law in holding that the assessee revisionist is liable to pay tax inspite of recordin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r. Mr. Pullick Raj Mullick, Advocate ORDER V.K. Bist, J. These two revisions have been filed against the common judgment and order dated 23.X.2009 passed by the Commercial Tax Tribunal, Uttarakhand in Second Appeal No. 12/2005 (A.Y. 1998-99) and 13/2005 (A.Y. 1999-2000), and this Court has to deal with a common question of law and, therefore, for the sake of convenience, both the revisions are consolidated and are being decided by a common judgment. 2. Brief facts of the case, shorn of unnecessa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er, it was given to some other person. The assessing authority by invoking Section 7(3) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act), passed assessment order, which was based upon the amount received by the revisionist. The revisionist was assessed to the tax liability of ₹ 1,76, 750/- and ₹ 1,45,750/- respectively for the assessment years 1998-99 and 1999-2000. Two appeals were filed by the assessee and the First Appellate Authority vide order dated 22.09.2001 al .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pondent and then to decide the matter afresh in accordance with law, and the Tribunal in its part, set-aside the order passed by first appellate order and remanded the matter to the first appellate authority. The First Appellate Authority held the 2nd respondent not exigible, while the revisionist was assessed to the tax liability on the sales of cooked food and other eatables. However, the assessed taxable turnovers and tax liabilities of the revisionist were reduced by the authority to ₹ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

visions were admitted by this Court on the following substantial questions of law:- (A) Whether on the facts and circumstances of the case, the learned Commercial Tax Tribunal was justified in law in confirming the order passed by the assessing authority holding that the revisionist is liable to pay the tax inspite of finding recorded that the first sale is effected by the respondent no.2? (B) Whether on the facts and circumstances of the case, the authority below was justified in law in holding .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts members. The sale consideration is received by 2nd respondent. Further, bills were issued by the assessee/ revisionist on behalf of 2nd respondent, however, payment was always received by 2nd respondent and after deducting all the amount, made the balance payment to the assessee/ revisionist, which is nothing but his job-charge as well as the cost of the raw material, which is purchased on behalf of 2nd respondent. It is submitted that thus, from these ingredients, it reflects that 2nd respon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Authority, there were two types of sales, one was credit sale i.e. the major sale and another was cash sale. He submitted that admittedly, the 2nd respondent realised the credit sale in their account and also the cash sale, and on submission of bills, payment was made to the assessee by 2nd respondent, through cheques. Further, while making payment to the assessee, the 2nd respondent deducted 12 per cent commission + water charges + electricity charges + salary of staff and after deducting all t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was cost of raw materials as well as his job-charge and nothing else, and the 12 per cent commission, as collected by 2nd respondent, was nothing, but a profit of the sale effected. He submitted that it is an admitted position of law that notification dated 30.11.1998 is applicable in the case in hand, where the rate of tax of cooked food is 5 per cent and tax is leviable at the point of sale to consumer. Further, as per the notification, tax will be charged at the point of sale to consumer. Th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd as such point, as mentioned in the notification. And, if tax is leviable at the point of sale to consumer, the 2nd respondent issued the cash memos and supplied food to consumers, who are his members and also received the sale consideration, therefore liability to pay tax is on 2nd respondent. He contended that the assessee has no control over the sale made to the consumers, therefore the assessee cannot be made liable to pay tax. Lastly, he submitted that the revisionist received the amount .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rtainments and healthy recreations for its members; (c) to join, amalgamate or reciprocate with any other club or association, whether incorporated or not, intended for the promotion of new objects in which the club is interested, and (d) the club incorporated under Indian Companies Act, as a Limited Company/ Association formed for those purpose, and not for gains. He contended that 2nd respondent had engaged a messing contractor, namely, Surender Singh Bisht, and accordingly, a messing contract .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t, on its part, was realising 12 per cent commission against the messing bills on account of usage of utilities, provided to messing contractor, i.e. furniture and fixtures, fans, stabilizers and electrical appliances. The messing contractor supplied the prepared food and even the service staff was on the employment rolls of the messing contractor. The covenant establishes that all the assets of the club, including storage space, was available to the contractor and all the employees of the club .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

stigation Branch, the 2nd respondent ensured that the messing contractor be duly registered with the Trade Tax Department, and that the arrangement is continuing, therefore, when the Department was satisfied that the messing contractor was defacto dealer; liable for registration under the Trade Tax Act, they could not consider the 2nd respondent as dealer for the past period under dispute, inasmuch as, there was no change in the covenants of the contract afterwards. He submitted that the finding .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the Department, on the other hand, submitted that the tax liability is accepted to both the contesting parties and it is only upon them to decide as to on which of the parties, the tax liability rests, either on the assessee or on 2nd respondent. He refrained to contend on the merits and de-merits of the case. 9. While examining facts of the case, we first found the case of revisionist correct as respondent no.2 entered the sale in their book of account, which is always done by an assessee. B .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e, grave injustice would be done to him. 10. We also find that while partly allowing the appeals filed by the assessee, the First Appellate Authority reduced the taxability of the assessee, holding that the assessee has done the job of purchase, manufacture and sale on the basis of oral agreement. Dehradun club is a group of members, and consumer of cooked food. The revisionist has accepted not maintaining any accounts, whereas 2nd respondent has produced the regular account book, audit report a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

als that Sri N.S. Bisht messing contractor have received the payment as cash and through bank for the supply of cooked food for the year 98-99 and 99-2000. M/s Dehradun club ltd. have filed the statement of the bank regarding the running payment made to the N.S. Bisht after deducting the commission and expenses, which shows that the payment is made to Mr. Bisht by cheque. The raw material was purchased by N.S. Bisht himself, and the payment of purchase was made by N.S. Bisht in cash. These fact .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cturing of cooked food was born by the contractor. The payment of 12% commission by club are mentioned as other income in audit report, which is ₹ 2,34,064.00/- and 2,26,177.00/- respectively. This amount was deducted by the club in lieu of facilities of kitchen, dining, and sale which is seems to be logical. On this point both the parties were also cross-examine. Both the parties agreed deduction of 12% commission. The role of the N.S. Bisht is not a employee of Dehradun Club or as job wo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Sri N.S. Bisht have done the job of purchase, manufacture and sale on the basis of oral agreement. Dehradun club is a group of members, and consumer of cooked food. For all process Sri N.S. Bisht have accepted not maintaining any accounts, whereas Dehradun Club have produced the regular account book, audit report and the true photo copy of the fourth night bills produced by contractor. The Dehradun Club made available the facility of kitchen, dining, KOT etc. to contractor. The payment received .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version