TMI Blog2019 (1) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ashok Kumar JJ. For the Applicant : M.M. Rai,N.R. Kumar For the Opposite Party : C.S.C. ASHOK KUMAR, J. Heard Sri M.M. Rai, learned counsel for the assessee-revisionist and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri C.B. Tripathi, learned Special Counsel for the State of U.P. Vide order dated 07.02.2011 passed in Trade Tax Revision No. 1264 of 2003 (M/S Sayeed Corporation Vs. Commissioner Trade Tax, U.P.) this Court has referred the following question for consideration by this Bench (Division Bench):- Whether in view of the fact that the purchase of the stone grit has been made from the registered dealer without issuing Form-3A and it was deemed to be sales to the consumer in the hand of seller and such sale is liable to tax whether further sale of such stone grits to the person other than the registered dealer without furnishing the declaration form, presumed to be sale to the consumer is liable to tax. The fact of the instant case are that the applicant was carrying on the business of stone grit. The stone grit is liable to tax on the point of sale to the consumer under the notification no. ST-II-5785/X-10(1)-80-UP-Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessing authority such declaration, obtained from the purchasing dealer. In such from and manner and within such period as may be prescribed. It is admitted in this case that the assessee who himself is a dealer purchased bread and biscuits from registered dealer without furnishing the required Form 3-A. Thus, bread and biscuits were taxable at single point on point of sale to the consumer. Thus, under Section 3-AAA sub-Clause (b), the sale by the assessee to the registered dealer would be the point at which the tax would be levied and when the assessee effected the sale. I find that the Tribunal committed no error in holding that the sales of bread and biscuits were exempted sales. Learned counsel for the revisionist has also placed reliance of the judgments in the case of Commissioner of Sales Tax Vs. Bechu Lal Ganga Prasad 1981, UPTC, 1213 as well as a decision of this Court in the case of Vishambhar Lal and Company Vs. Commissioner of Sales Tax ( Sales Tax Revision Nos. 320, 321 and 322 of 1979) decided on 8th April, 1980. Learned counsel has also placed reliance of a Division Bench judgment of this Court in the case of Shahabudin Zakir Hussain Company Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) oil seeds, that is to say, seeds yielding non-volatile oils used for human consumption or in industry, or in the manufacture of varnishes, soaps and the like, or in lubrication, and volatile oils used chiefly in medicines, perfumes, cosmetics and the like. (2) Unless the dealer proves otherwise, every sale by a dealer shall, for the purposes of sub-Section (1), be presumed to be to a consumer. Explanation.- A sale of any of the goods specified in sub-section (1) to a registered dealer who does not purchase them for resale in the same condition in which he has purchased them, or to an unregistered dealer shall, for purposes of this section, be deemed to be a sale to the consumer. Rule 12-A of the U.P. Trade Tax Rule provides the procedure to be applied for getting exemption of certain sales. Sub Rule 1 of Rule 12-A provides as follows:- 12-A. Exemption of certain sales. (1) A registered dealer who wishes to purchase any goods, liable to tax under sub-Section (1) of Section 3-A or Section 3-AA at the point of sale to the consumer, without payment of tax shall furnish to selling dealer a certificate in Form III-A, duly filled in and signed by him. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal Vs. Commissioner of Sales Tax, U.P., Lucknow (1986) 62 STC 112 SC . Apart from the aforesaid decisions, learned Additional Advocate General has also referred the Division Bench judgment of this Court in the case of Shahabuddin Zakir Hussan (supra). In the case of Shahabuddin Zakir Hussain (supra) the question referred for the opinion to a 3rd Judge was as follows:- Whether Rule 12-A of the U.P. Sales Tax Rules provides that the only proof open to a dealer for establishing that the goods purchased from him are for resale in the same condition is a certificate in Form III-A and unless such dealer furnishes a certificate in Form III-A, the sale by him must be taxed in his hands under sub- Section (1) of Section 3-AA as a sale to the consumer? The 3rd Judge Hon'ble M.H. Beg, J. has answered the question in the affirmative by saying 'I hold that unless a dealer proves certification in Form- 3-A, a sale by him must be taxed under Section 3-AA(1) of the Act as a sale to the consumer'. In the case of Commissioner sales tax Vs. Shanker Lal (supra) the Form- 3-A was filed therefore this Court has held that no other material can be looked into to determine that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary view is accepted, it will limit the selling dealer to that mode alone and will preclude from adopting any other mode of proof. It must not be forgotten that Rule 12-A has been framed for giving effect to the purposes of Section 3-AA. If it seeks to limit the selling dealer to a specific mode of proof it clearly attempts to impose restriction which was not contemplated by Sub-section (2). It may have been a different matter if Subsection (2) had read, unless the dealer proves otherwise in the manner prescribed...... , when it could have been legitimately contended that the only mode of proof available to the dealer was the mode prescribed in Rule 12-A. But that the Legislature did not enact. 12. There is another aspect of the matter. If Rule 12-A provides the only mode for a selling dealer to prove that the sale by him is not to the consumer there will be cases where the Rule may operate to nullify the object of Section 3-AA. An illustration will demonstrate this. A registered dealer sells goods to another registered dealer. The goods are purchased by the purchasing dealer for resale in the same condition in which he purchased them. He sells them to a consumer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an individual who could divert the course of the levy by withholding Form III-A. The conduct of such an individual is not controlled by the statute, there being no obligation on him to furnish the Form. In the case of Chunni Lal Parshadi Lal (supra) the controversy came up for consideration before the Apex Court was as to whether the sales tax is payable if the goods are sold to consumer. The Apex Court has laid down, while considering the full Bench decision of this Court in the case of Shanker Lal Chandra Prakash (supra), J.K. Manufacturers Ltd. (supra) and has upheld the majority view in J.K. Manufacturers Ltd.' Learned Additional Advocate General has also referred a Judgment of the Apex Court in the case of Hotel Balaji and Others Vs. State of Andhra Pradesh and Others (1993) 88 STC 98 SC. While dealing with the provision of Section 3-AAAA, which was inserted in U.P. Sales Tax Act in 1992 with a retrospective effect from 1.4.1974, the Apex Court has noticed that the said provision imposes the liability of purchase tax on certain transactions. Paragraph 52 and 54 of the judgment in the case of Balaji (supra) are referred, which are quoted herein below:- 52. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to tax under State Act or Central Sales Tax Act. On this score, we see no difficulty for the purchasing dealer. From the bill given by the selling dealer, the purchasing dealer can prove the payment. Or he can simply prove, as a matter of law that the said goods are liable to be taxed under any other provision of the Act or under the Central Sales Tax Act. We are equally unable to see any vagueness in the provision nor is it established that any such vagueness is operating to the prejudice of the petitioner. In the case of M/s Balaji (supra) the Hon'ble Apex Court has held that if a benefit is claimed by the purchasing dealer, it is for him to prove the fact which enable him to claim the benefit that burden can not be passed on to anyone else. So far as the registered dealers are concerned, all that the purchasing dealer need to prove is that the said goods which are purchased by him have already been subjected to tax under the Act. In the aforesaid background, learned Additional Advocate General has submitted that admittedly in the instant case revisionist has not placed any evidence which proves that the tax has been paid on the purchase of stone grit by the revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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