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2016 (11) TMI 843 - KARNATAKA HIGH COURT

2016 (11) TMI 843 - KARNATAKA HIGH COURT - TMI - Eligibility of exemption from tax - central sale - the claim made in Form-D declaration was unavailable - If the material is supplied in response to the tender invited in the name of President of India, whether it has to be considered under the Central Government or not? - Held that: - if the goods are supplied or procured in the name of the President of India or supplied in response to the tender published in the name of the President of India, i .....

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e Assessing Authority, that could be a better course since the Assessing Authority would be in a position to examine and may also call for other documents, if required for verification or otherwise. Hence, we find that the matter should be relegated to the first Assessing Authority - the impugned orders passed by the Assessing Authority and confirmed thereof by the first appellate authority as well as by the Tribunal are quashed and set aside - matter remanded back with directions. - S.T.R.P. NO .....

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the name of President of India, whether it has to be considered under the Central Government or not. 5. The short facts of the case appears to be that as per the petitioner, it had supplied material in response to the tender published by the Prasara Bharathi, a statutory body, but the tender was in the name of President of India for procurement of certain material. As per the petitioner, it had supplied material and thereafter, declarations in Form-C and Form-D were filed. The returns were file .....

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l before the first appellate authority. But, the first appellate authority found that Prasara Bharathi is not a Central Government Department and therefore dismissed the appeal. The petitioner further carried the matter before the Tribunal and the Tribunal also found that Prasara Bharathi, though comes under the administration, control of the Central Government through Ministry of Broadcasting, it is not the Central Government itself and therefore, the Tribunal dismissed the appeal. In these cir .....

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l not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner- (a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or (b) if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed form duly filled and signe .....

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ther facet of Section 8 of the Act, we need not discuss the same, but suffice it to observe that by virtue of sub-section (4) of Section 8, if the declaration is filed for the goods sold to the Government, the benefit as contemplated under sub-section(4) of Section 8 should be made available. 10. Learned counsel appearing for the petitioner contended that though the tender was published through Prasara Bharathi, but it was in the name of the President of India and therefore, the declaration so f .....

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tion 4 would be unavailable. He submitted that lower authorities have rightly held that Prasara Bharathi is different that of Central Government or Union Government and hence, the benefit was not available to the petitioner for declaration so filed and hence the tax has rightly been assessed. 11. The word "Government" is not defined under the CST Act. Therefore, we may refer to Section 3(8)(a) of the General Clauses Act, 1897, which reads as under: 3(8) "Central Government" s .....

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ssioner's Province, the Chief Commissioner acting within the scope of the authority given to him under sub-section (3) of section 94 of the said Act; and 12. When General Clauses Act was enacted, the Constitution of India was not in force, but the Government of India Act, 1935 was in force and that is why the language used was Governor General or the Governor General in Council. A reference can also be made to Article 299 of the Constitution, which reads as under: "299. Contracts: (1) A .....

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assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof." 13. The aforesaid Article shows that for all contracts in exercise of the executive power for the Union or the State would be made by the President or the Governor of the State as the case may be .....

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der, it has been mentioned under the head 'Description' as under: "Sealed tenders are hereby invited for and on behalf of the President of India from reputed firms for the work of Supply, Installation, testing and Commissioning of Moving Lighting Grids and Dimmer Console at DDK Chennai." (Emphasis supplied) 15. The aforesaid shows that for the procurement of the material, the tenders were invited for and on behalf of the President of India and the name of the purchaser in the t .....

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tender documents were not produced before any of the authority and he submitted that the said documents are coming on record for the first time. Therefore, the authority had no occasion to examine as to whether these tender documents ever exist or not, nor it was verified at the relevant point of time. He submitted that mere documents produced for the first time, this Court may not finally rule as to whether the petitioner would be entitled to the benefit of sub-section(4) of Section 8 of the C .....

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o the first Assessing Authority and if it is found that the procurement was in the name of the President of India and in response to the said tender the goods are sold by the petitioner to the President of India, may be through Prasara Bharathi or any other organization or authority, then the petitioner would be entitled to the benefit of Section 8(4) of the CST Act. Once the entitlement of the benefit is found, the assessment would be different, but suffice it to observe that it is only after t .....

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