AMIN CHAND AND CO Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner is a registered dealer nnder section 7 of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Act") and engaged in the sale of aerated water at Amritsar. Originally, the assessment of sales tax was framed by the Assessing Authority, Amritsar, for the year 1974-75 levying tax on the sale of aerated water at the rate of 6 per cent vide its order dated 17th September 1976. Subsequently, the department discovered that while framing original assessment the Assessing Authority levied tax on the sale of aerated water at the rate of 6 per cent instead of 10 per cent and that the turnover of the business of the dealer had also been under-assessed. Accordingly, reassessment proceedings were started under section 11-A of the Act and notice in form S. T. XIX was issued to the dealer. In response to the said notice, the dealer appeared before the Assessing Authority and took up the plea that the previous assessment was legal. The Assessing Authority, however, rejected the contention of the dealer and reassessed the dealer creating an additional demand of Rs. 4,008 for the assessment year 1974-75, vide order dated 9th May, 1977. Feeling aggrieved against the said order of the Assessing Authority, the dealer filed first appeal before the Deputy Excise and Taxation Commissioner on the main ground that he had manufactured carbonated water with a different manufacturing process than the aerated water and that the Assessing Authority was in error in levying tax at the enhanced rate of 10 per cent on the sales of carbonated water. The Deputy Excise and Taxation Commissioner, however, rejected this contention vide his order dated 21st August, 1978. The dealer then filed second appeal before the Tribunal, which was also dismissed vide order dated 4th December, 1979 by the Presiding Officer of the Sales Tax Tribunal, by holding that the aerated water and carbonated water being interchangeable terms, the Assessing Authority had rightly framed the assessment. He, however, partially allowed the appeal concerning the assessment of tax on other items like coffee and snacks. Still not being satisfied with the order of the Tribunal, the petitioner moved an application under section 22 (1) of the Act for making a reference to the High Court, which was dismissed by the Tribunal on 7th January, 1981. Against this order of the Tribunal, the dealer filed an application before the High Court under section 22 (2) of the Act requiring the Tribunal to refer the following questions of law alleged to have arisen out of the order of the Tribunal :

(2.) A Division Bench of this Court vide its order dated 9th November, 1981 allowed the petition of the petitioner and directed the Tribunal to state the case for the opinion of the High Court by holding that the question whether sweetened carbonated water falls within the definition of "aerated water" or not, was prima facie a question of law. Accordingly, the Tribunal had referred the following question for the opinion of this Court, along with the statement of facts :

(3.) A bare perusal of the description of carbonated water in the above referred item leaves no doubt that water should be impregnated with carbon dioxide under pressure and may contain any other substance or substances reproduced above. Thus, it tallies with the dictionary meaning of "aerate".