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TMI Blog2024 (3) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... , whereby the Tribunal partly allowed the appeals preferred by the respondents and remanded the matters back to the Revisional Authority. 2. The Assesse M/s. Vijayawada Bottling Company Ltd., Vijayawada is a registered dealer on the rolls of Commercial Tax Officer, Benz Circle, Vijayawada. They are manufacturers and sellers of soft drinks such as, Goldspot, Limca, Citra, Thums-up etc., They fill up the bottles with one of these soft drinks, seal them and deliver them to the whole-sale distributors, who in turn sell them to retail dealers and from them to the consumers. The customers, after consuming the soft-drink, return the empty bottles to the retail dealer. The retailer returns the empty bottles to the whole-sale dealer and from them t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesalers. For example for the year 1994-95, the broken bottles debited to Profit and Loss Account is to a tune of Rs. 11,98,476/- whereas the amount collected from the wholesaler is Rs. 24,81,704/-. Thus, the assesse has earned a profit of Rs. 12,83,228/-, which works out to be more than 100% profit. The collection of value of broken bottles is considered as one of the business expenses of the assesse by not including it in the sale price of the end product. It was observed by the revisional authority the modus operandi adopted by the assesse was only to reduce the sale value of its end product and to avoid payment of tax. It was further observed by the Revisional Authority that he has verified the books of accounts of one of the main whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds like sale price and bottle hire charges should be treated as sale value of soft drinks only. The collection of hire charges by way of debit notes is done by the dealer company only to avoid payment of tax. The revisional authority accordingly revised the assessment order. Against the same an appeal was filed before the Tribunal. 5. The Tribunal observed that the revisional authority did not dispute the figures quoted in the accounts by the appellant but disputed the head, under which it was accounted for and no enquiry whatsoever was conducted, except going through the records of the wholesale dealer and notice that the breakages are collected by the appellant from wholesaler and no such collections are made by the wholesaler from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges are collected splitting the sale value of soft drinks. It was also observed that there was no material before the Revisional Authority to arrive at such conclusion. The Revisional authority also failed to examine whether the publicity charges are pre-sale expenditure or post-sale expenditure. It was also observed that the amounts incurred by the appellant were later reimbursed by the wholesalers and the manufacturers. It was held that the same would not represent pre-sale expenditure and thus would not form part of the turnover. On this count the appeal was allowed. 7. With respect to lease transactions Section 5-E of the AP General Sales Tax Act, 1957 [the "Act".] is referred to by the Revisional Authority and Revisional Authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that generally all lease transactions will be for a specified period. However, Section 5-E of the Act provides for unspecified period and the appeal was allowed to that extent. 9. There is no question of law framed by the petitioner for entertaining the Tax Revision Case. An order of remand for re-assessing the factual possession cannot be considered as an erroneous decision on the question of law. As seen from the order of the Tribunal, the Tribunal has not decided on any issue on the question of law. It has fairly considered the issues before it and passed the orders partly allowing the appeal and remanding back to the Revisional Authority. The learned counsels for the petitioner and respondents relied on Hindustan COCO Cola Beverages Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter execution of the contract), but also the control of the goods by the user. When the substantial remains with the Contractor and is not handed over to the user there is no transfer of the right to use the vehicles, cranes, tankers, etc., Whenever there is no such control on the goods vested in the person to whom the supply is made, the transaction will be of rendering service within the meaning of Section 65 (105) (zzzzj) of the Finance Act after the said provision came into force. 12. There is no impediment for the Tribunal to remand the matter for ascertaining further facts in so far as ascertaining the relationship of the nature of transaction between the wholesaler and the retailer, though the business of manufacturer and wholesaler ..... X X X X Extracts X X X X X X X X Extracts X X X X
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