TMI Blog2016 (8) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... tification dated 29.08.2003 should have been read as it is and on that basis the High Court was supposed to examine as to whether the appellant satisfied the conditions of Section 4B of the Act read with the aforesaid Notification dated 29.08.2003 or not. The benefit is extended to a dealer and for availing this benefit it is not necessary that he has to be a manufacturer. Here, the appellant satisfies all the conditions and is also the first purchaser - appellant entitled to the benefit of Section 4B(1)(a-1) as well as Notification dated 29.08.2003 – appeal disposed off - decided in favor of appellant. - Civil Appeal No. (S). 3161-3162/2008 - - - Dated:- 22-7-2016 - A. K. Sikri And Rohinton Fali Nariman, JJ. For the Appellant : Mr. Arvind P. Dattar, Sr. Adv. Mr. Ajay Aggarwal, Adv. Ms. Mallika Joshi, Adv. Ms. Ruchika, Adv. Mr. Rajan Narain,Adv. For the Respondent : Mr. Ravi Prakash Mehrotra,Adv. Mr. Vibhu Tiwari, Adv. Mr. Abhinav K. Malik, Adv. Mr. Vinay Garg, Adv. ORDER These appeals are preferred by the appellant/assessee questioning the validity and/or propriety of the judgment dated 16.01.2007 passed by the High Court of Judicature at Allahabad whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by filing two writ petitions which had been dismissed by the High Court by the impugned order. Before adverting to the manner in which the High Court has decided the matter, we would like to reproduce the relevant provisions of the Act as well as exemption Notification dated 29.08.2003. Section 3D of the Act, which is a charging section, prescribes the levy of trade tax on purchaser or sale of certain goods. These goods, admittedly, include wheat. Notwithstanding this provision contained in Section 3D of the Act, Section 4B(1)(a-1)contains a special provision providing special relief to such assessees. The heading of the section is special relief to certain manufacturers . Since the appellant is claiming the benefit of the special relief that is provided under the aforesaid provision, we would like to reproduce sub-Section(1)of Section 4B in its entirety: Sub-Section(1): Notwithstanding anything contained in Sections 3,3-A,3-AAAA and 3-D - (a) Where any goods liable to tax under sub-section(1) of section 3-D are purchased by a dealer who is liable to tax on the turnover of first purchases under that sub-section, or where any goods are purchased by any dealer in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) of Section 4B(1)(a-1) of the Act and such manufactured goods shall be notified goods for the purposes of the said section. It is clear from the above that this Notification which was issued in exercise of powers conferred under Section 4B(1)(a-1) prescribed that no tax shall be payable by the said registered dealer who is the first purchaser and the conditions which are mentioned therein are the same which are provided under Section 4B(1)(a-1), as noticed above. Of course, this Notification mentions certain conditions and restrictions as well which are as follows: 1. The wheat is purchased from the first purchaser by a Roller Flour Mill and Atta Chakki Plant situated within the State of Uttar Pradesh; 2. The Roller Flour Mill and Atta Chakki Plant has been granted benefit of composition of tax liability under Section 7D during the relevant period; 3. The first purchaser of wheat within the State furnishes a declaration in Form 3B as provided under the Act, obtained from the purchasing Roller Flour Mill and Atta Chakki Plant alongwith following endorsement on the back from such Roller Flour Mill and Atta Chakki Plant. It is not in dispute that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven a hypothetical illustration by stating that in order to avail the benefit of the Notification and evade payment of purchase tax, a particular supplier may set up a middle man or an agent who will be the first purchaser and who will claim exemption under the said Notification and will supply wheat to flour mill beyond its assessed grinding capacity and the excess quantity of wheat which the flour mill will receive is only by way of supply and not by way of purchase. As mentioned above, this is not only a hypothetical situation, but even the illustration as given is not a correct illustration. If a dealer sets up any middle man or an agent who purchases the goods,then such middle man or agent becomes the first purchaser and in that event he would not be in a position to get the benefit of the special relief provided under Section 4B of the Act. Therefore, we are of the opinion that the Notification dated 29.08.2003 should have been read as it is and on that basis the High Court was supposed to examine as to whether the appellant satisfied the conditions of Section 4B of the Act read with the aforesaid Notification dated 29.08.2003 or not. As mentioned above, the appellant satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
