C.T.O. (AE) Vs. MARUDHARA MOTORS

JUDGEMENT

(1.) THESE revision petitions have been filed by the Revenue under Section 86 of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as the Act of 1994) being aggrieved by the order of the Rajasthan Tax Board, Ajmer dated 18/6/2067, whereby, the Tax Board decided a batch of sue appeals filed by the Assessee and another batch of six appeals filed by the Revenue. These cross appeals arose out of the order of first appellate authority - Deputy Commissioner (Appeals), Jodhpur dated 22/7/2006, whereby, the Deputy Commissioner (Appeals) upheld the levy of tax upon the assessee, whereas, set aside the levy of interest and penalty imposed by the assessing authority under Section 65 of the Act. So far as levy of tax was upheld, the assessee was aggrieved and, therefore, it preferred six appeals for six different assessment years namely A.Y.2000 -01, 2001 -02, 2002 -03, 2003 -04, 2004 -2005 and 2005 -2006. As far as levy of interest and penalty is concerned, since first appellate authority had set aside the same, the Revenue preferred another batch of six appeals and these 12 appeals came to be disposed of by common judgment of the Tax Board dated 18/6/2007. It may also be stated that the assessment order for the A.Y.2000 -01 to 2003 -04 were passed by the assessing authority by invoking the power of reassessment under Section 30 of the Act to impose tax on turnover having escaped assessment, whereas, for A.Y.2004 -05 and 2005 -06 said assessment was framed under Section 28 of the Act.

(2.) THE issue which arises for consideration by this Court in present revision petitions is as to whether the assessing authority could impose tax on the assessee, a dealer of TATA Vehicles on the value of credit notes issued by the Manufacturer M/s TATA Motors for defective parts of cars and other vehicles supplied by the assessee, a dealer of the manufacturer under a warranty agreement between the manufacturer and the ultimate customer to whom such vehicles are sold by the assessee. The sole reason on which such tax was imposed by the assessing authority for three years by invoking the reassessment power under Section 30 of the Act though the original assessment was framed without imposition of tax and for later two years in regular assessment proceedings under Section 28 of the Act is that such levy of tax was upheld by the Supreme Court in case of Mohd. Ekram Khan & Sons v. : AIR2004SC3965 .

(3.) PER contra, Mr. R.P. Bhatt, Senior Advocate assisted by Mr. Vikas Balia submitted that judgment of Supreme Court in Mohd. Ekram's case (supra) was not applicable in the facts of the present case and, therefore, Tax Board was perfectly justified in setting aside the levy of tax as well as interest and penalty. Learned Counsel for the assessee submitted that as far as the question of penalty is concerned since all disclosures were made in the books of accounts of the assessee, there was no question of imposition of penalty under Section 65 of the Act upon the assessee. However, he submitted that question of interest depended upon levy of tax itself and in his submission the levy of tax itself was wrong in the facts of the present case. In other words, he prays for dismissal of revision petitions filed by the Revenue. Learned Senior Advocate Mr. Bhatt also submitted that in fact, the facts of the present case were covered by the earlier decision of the Hon'ble Supreme Court in the case of Premier Automobiles Ltd. v. : AIR1972SC1690 as also decision of three High Courts in the case of GEO Motors v. State of Kerala, (2001) 122 STC 285 (Ker), Prem Motors v. and Commissioner of Sales Tax v. . He fairly submitted that though the decision of Kerala High Court in GEO Motors case (supra) and Madhya Pradesh High Court in Prem Motors (supra) were overruled by the Supreme Court in Mohd. Ekram's case (supra), however, the facts of Mohd. Ekram were clearly different and distinguishable from the facts of present case and, therefore, the Revenue authorities had erred in applying the judgment of Hon'ble Supreme Court in Mohd. Ekram's case (supra) to the facts of the present assessee.