TMI Blog2018 (5) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal dated 28.02.2002 made in C.T.S.A.No.492 of 2000, on the file of the Sales Tax Appellate Tribunal (AB), Coimbatore. 2. The brief facts of the case are as follows: The assessee/respondent Tvl.Velan Hotels Limited, Tirupur were finally assessed on the total and taxable turnover of ₹ 1,27,47,878/- and ₹ 92,32,329/- respectively for the year 1994-95, vide proceedings dated 30.04.1996. Their place of business were inspected by the Officers of the Enforcement Wing of the Department on 25.03.1998 and on 02.07.1998. Subsequent to the inspection, books of accounts of the respondent/dealer were called for. But, the dealer has failed to produce the accounts. Therefore, the assessing authority, determined the total and ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the capital assets of the company. Raising of the invoices for the purpose of financial arrangement cannot be treated as ale there is no liability to tax as decided by the Deputy Commissioner (Appeal) Coimbatore in Ap.No.8/97 dated 3.12.97 in the case of Thiagarajar Mills Ltd., for the assessment year 1994-95. Regarding this issue the learned Appellate Assistant Commissioner in his order in Page No.3, in paragraph 4(a) has stated as follows: I find that the Enforcement Wing Officials have sent a best judgement D3 proposals in D3-55/99-2000. In this proposal they have discussed about the various summons issued and the nonchalant attitude of the appellants in not producing the relevant records before them. Based on the sale bill No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Finance Ltd. This Programme is solely intended to the appellants only and the appellants have raised an invoice only for securing finance from the Finance Company. The decision reported in 17 STC 489 in the case of Sundaram Finance will squarely apply to the case on hand. In this case the Hon'ble Supreme Court of India has held that, the goods purchased by the customer remained at all times with him only. This So-called sale letter is merely a formal document. The finance company's right to seize the goods is merely a licence to ensure compliance with the terms of the hire-purchase agreement. The transaction is merely a financing transaction and there is no sale when the rights of the finance company are extinguished by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, there could not be any transfer of any consideration for such transfers. 9. In 28 STC 337 in the case of Mahaveer Prasad and another Vs. The Commissioner of Sales Tax, Uttar Pradesh, it is held that suspicion however strong it may be cannot take the place of positive material. 10. In the case of Standard Mercantile Co. Vs. The State of Bihar reported in 29 STC 675, in matters concerning taxation, the assessing authorities must be definite before inflicting tax on the payer and where an element of doubt pervades the mind of taxing authority, the benefit of doubt would go to the tax payer. 11. The Supreme Court in the case of Alladi Venkateswaralu Vs. State of Andhra Pradesh reported in 41 STC 394 held if two interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commissioner of Sales Tax, the Hon'ble Supreme Court held that levy and collection of Sales tax is to be regulated by law and not by contract between parties. 17. The sales tax under the statute attaches to the actual sales i.e. to say sales that have takn place and not to sales which have not taken place (52 STC 351 in the case of State of Tamil Nadu Vs. Rafeeque Ahmed Co.) 18. The Supreme Court in 76 STC 71 in the case of Good India Ltd., Vs. State of Haryana held that particular manner in which the accounts had to be maintained is no criterion or evidence for determining when the liability to tax arise and the liability is to be determined with reference to statute which creates it. 19. Relying on the decision r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the dealer had raised sale bill which contains details of the system software sold with value. Further the dealer is the seller and Tvl.Annamalai Finance is buyer. 2. The tribunal has failed to verify the balance sheet or the ledger account of the dealers to ascertain whether it contains details of capital assets in the deletion column as sale of the system software or the dealer had claimed depreciation even after sale to the finance company. 3. The tribunal has failed to note that the dealer had not produced any recorded evidence to show the repayment of loan amount in instalments. In case the dealer had failed to pay the instalment amount the finance company can renew the system software for the dealers since they possess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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