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M/s Rohil Zinc Ltd. Versus The State of Maharasthra & Others

2016 (1) TMI 954 - BOMBAY HIGH COURT

Maintenance of records for 5 years - The five year period to be reckoned from the last day of the financial year concerned or not - Revision proceedings - Rate of tax on zinc oxide - 10% or 4% - In order to set right these mistakes, a revision was proposed. That was to revise the assessment order under section 57 of the BST Act. That is how Notice in Form 40 was issued and served upon the dealer on 7th December, 1998, calling upon him to remain present on 28th December, 1998. However, on that da .....

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he Revisional Authority passed the order ex-parte on scrutiny of the case records underlying the assessment order dated 30th November, 1995. Thus, the records before the Assessing Authority were taken into consideration. The dealer was called upon on the basis thereof to satisfy the Revisional Authority as to why the assessment order should not be revised. There was absolutely no prejudice, therefore, to the dealer and he could have, on the basis of the order of assessment, opposed the exercise .....

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e questions at page Nos.6 and 7 of the paper-book and formulated by the applicant are all questions of law. Each of them should have been referred for the determination and answer by this Court. 2. Mr. Thakar, learned counsel appearing in support of the application, firstly submitted that Rule 54 of the Bombay Sales Tax Rules, 1959, do not require a dealer like the applicant to maintain records of past transactions for more than five years. The five year period, according to him, should be recko .....

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t from 1st June, 1992. The assessment in the case of the petitioner resulted in only a demand of ₹ 6524/- being raised. According to the Tribunal, the scrutiny of the case records pertaining to the underlying assessment order was undertaken and which resulted in a revisional exercise. The Revising Authority held that the applicant is dealing in zinc oxide covered by the Schedule entry and is liable to tax at 10% but that taxable sales were disclosed for the same period in the returns furni .....

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these mistakes, a revision was proposed. That was to revise the assessment order under section 57 of the BST Act. That is how Notice in Form 40 was issued and served upon the dealer on 7th December, 1998, calling upon him to remain present on 28th December, 1998. However, on that date the dealer did not remain present. That is why the matter was adjourned. On 6th December, 2000, in the absence of the dealer and his representative, the file was closed and the subject order dated 7th December, 200 .....

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is application and direct the Tribunal to forward the questions accordingly. 4. Reliance is placed, inter-alia, on the phraseology of Rule 54 and a Division Bench judgment of this Court reported in the case of Commissioner of Sales Tax vs. Ramdas Laxmidas Vol. 38 STC 354. 5. On the other hand, Mr. B.B.Sharma appearing on behalf of the Revenue would submit that none of these questions can be termed as questions of law. This is an attempt at re-appreciation and reappraisal or revisiting factual fi .....

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records then available with the Assessing Officer. It is that exercise which was undertaken and there is absolutely no prejudice, for the dealer got all opportunities available to him in law. For all these reasons and bearing in mind the tax liability, Mr. Sharma would oppose this application and pray for its rejection. 6. We have heard both sides at length. 7. We are mindful of the fact that in Ramdas Laxmidas this Court was considering a question wherein the Department sought a Reference to t .....

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x Act, 1946. It was not disputed that for the period, namely 1st April, 1948 to 31st March, 1952, i.e., much after it duly and legally filed the returns, it received a notice on 12th December, 1953, calling upon it to attend the Sales Tax Office in respect of the assessment. The order of assessment, which was one composite order for the entire period, was made on 27th April, 1954. In their returns and in the course of assessment, the respondents claimed to deduct the turnover of certain sales fr .....

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r resale or for use as containers and other materials for the packing of goods to be sold or supplied by him. Rule 26(2) required that a dealer who wished to claim deduction from his gross turnover under the above Rule shall, on demand, produce in respect of the sale for which the deduction is claimed, the documents which are referred more particularly in this Court's judgment at page 355 of the Law Report. 8. It is in dealing with this controversy that the Division Bench held that when the .....

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ion of suo moto revision proceedings or reassessment proceedings, or, when no period of limitation is prescribed, for the initiation of such proceedings for all times, and if he does not preserve such documents, no adverse inference can be drawn against him by the reassessing or revising authority nor can such authority in suo moto revision or reassessment proceedings cancel, withdraw or disallow any deduction or exemption allowed to him in his assessment proceedings on the strength of such docu .....

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of law arising out of a peculiar controversy. 9. We do not see how any assistance can be derived from this judgment in the present case. 10. This is not a case where any order to the prejudice of the applicant-dealer has been passed because of non availability or non production of the records. The Second Appellate Order initially passed on 23rd June, 2010, recites the facts. The Revisional Authority passed the order ex-parte on scrutiny of the case records underlying the assessment order dated 3 .....

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