Ali Hasan vs The Commissioner, Commercial Tax

J.S. Khehar, C.J.—The revision petitioner admittedly purchased timber from M/s East Hope Town Estate, Dehradun and M/s Arcadia Tea Estate, Dehradun. While the revision petitioner is an unregistered dealer, both M/s East Hope Town Estate, Dehradun and M/s Arcadia Tea Estate, Dehradun are duly registered with the Trade Tax Department.

Information about the aforesaid purchase of timber for the assessment years 1998-99 upto 2004-05, by the revision petitioner, from M/s East Hope Town Estate, Dehradun and M/s Arcadia Tea Estate, Dehradun, was collected by the respondent, whereupon tax was imposed on the revision petitioner on the sale of the same. The first order in this behalf was passed by the Assessing Authority on 1.1.2008. Dissatisfied with the order passed by the Assessing Officer, the revision petitioner preferred an Appeal before the Joint Commissioner (Appeals). The aforesaid Appeal was dismissed by the Appellate Authority vide an order dated 30.1.2009. The revision petitioner then assailed the assessment order as well as the appellate order, before the Commercial Tax Tribunal, Uttarakhand. The Tribunal vide an order dated 21.8.2009 affirmed the earlier orders passed by the Assessing Officer, as also, the first Appellate Authority.

Through the instant Revision Petition, the revision petitioner has assailed the aforesaid orders dated 1.1.2008 passed by the Assessing Officer, dated 30.1.2009 passed by the Appellate Authority and dated 21.8.2009 passed by the Commercial Tax Tribunal, Uttarakhand.

The solitary contention advanced by the learned Counsel for the revision petitioner is based on Section 3 of the U.P. Trade Tax Act, 1948. Section 3 relied upon by the learned Counsel for the revision petitioner is being extracted hereunder:

Liability to tax under the Act.--(1) Subject to the provisions of this act, every dealer shall, for each assessment year, pay a tax at the rates provided by or u/s 3-A, or Section 3-D on his turnover of sales or purchase or both, as the case may be which shall be determined in such manner as may be prescribed.

(2) No dealer shall, except as otherwise provided in Section 18, be liable to tax under Sub-section (1) if, during the assessment year the aggregate of his turnover of

(a) purchases of goods notified u/s 3-D;

(b) purchases liable to tax under any other provisions of this Act;

[(c) sale of goods notified u/s 3-D where such goods have not been purchased within the State];

(d) sales of all goods (except those notified u/s 3-D), whether such sales is made by the dealer directly or through his branch, depot or agent inside the State, in the course of inter-State trade or commerce or outside the State, is less than [one lakh] rupees in the case of manufacturers and [one lakh fifty thousand] rupees, in the case of other dealers, or such larger amount as the State Government may by notification, specify in that behalf either in respect of all dealers in any goods or in respect of a particular class of such dealers.

(3) Nothing in Sub-section (2) shall apply in respect of

(a) the sale by a dealer of goods imported by him from outside Uttar Pradesh, the turnover where of is liable to tax under Sub-section (1) of Section 3-A, or

(b) the sale by a dealer of

(i) goods imported by him from outside Uttar Pradesh after furnishing to the selling dealer a declaration under Sub-section (4) of Section 8 of the Central Sales Tax Act, 1956 (Act 74 of 1956); or as the case may be,

(ii) goods purchased or imported by furnishing

any declaration or certificate prescribed under any provisions of this Act;

(iii) goods manufactured by him by using the goods referred to in Sub-clause (i) or Sub-clause (ii).

(4) Where the amount specified in, or notified under Sub-section (2) is altered during an assessment year, the tax payable by a dealer under this section shall be computed as follows:

(a) on the turnover relatable to the period prior to such alteration as though the amount specified in or notified under Sub-section (2) had not been altered; and

(b) on the remainder, as though the altered amount had been in force on all materials dates.

(5) Where tax is payable and has been so paid, by a commission agent on any turnover on behalf of his principal, the principal shall not be liable to pay the tax in respect of the same turnover.

(6) Not with standing anything to the contrary contained in any other provision of this Act, where the State Government consider it expedient in public interest so to do, it may, be notification, permit a dealer selling any goods specified in the notification to another dealer hereinafter in this Sub-section referred to as the purchaser, to won the liability of tax or composition money, as the case may be, payable by the purchaser in the event of resale of such goods or sale or any other commodity manufactured from such goods and if such dealer owns such liability, he shall be liable in place of the purchaser, to pay the tax or composition money in respect of the turnover of such re-sale of such goods or sale of such commodity.

In fact during the course of the hearing, learned Counsel for the petitioner only relied on Sub-section (1) of Section 3, which mandates that the tax would be payable at rates "...determined in such manner as may be prescribed..." u/s 3(a) and 3(b) on the turn over of sales or purchases and both. The liability to pay tax under the provision extracted above is fastened on the dealer.

In order to substantiate his claim, learned Counsel for the revision petitioner invited our attention to the Gazette Notification dated 23.11.1998 (appended as Annexure-6 with the instant Revision Petition), so as to submit, that the revision petitioner is not liable to pay tax u/s 3, because tax on wood and timber of all kinds and of all trees of whatever species is liable to be paid by the "...owner of the forest...". The instant contention is based on the entry at Serial No. 76 of the Gazette Notification dated 23.11.1998. The entry at Serial No. 76 is being extracted hereunder:

Sl. No. Description of goods Point of tax Rate of tax percentage 1 2 3 4 76 Woods and timber of all Sale by Forest 15% kinds and of all trees of Department, whatever species the U.P. Forest including ballies and Corporation or bamboos whether by private growing or cut or sawn, owner of forest but excluding their or by importer products and fire wood. or manufacturer: Provided that where the sale is by the forest department to the U.P. Forest Corporation the tax shall be levied on the point of sale by said Corporation and not at the point of sale by Forest Department.

It is the pointed submission of the learned Counsel for the revision petitioner that insofar as the revision petitioner is concerned, he had purchased timber from M/s East Hope Town Estate, Dehradun and M/s Arcadia Tea Estate, Dehradun, which were engaged in forestry, and as such, it was not open to the respondent to impose tax on the revision petitioner. The instant contention of the learned Counsel is based on a collective reading of Section 3 of the U.P. Trade Tax Act, 1948, read with the entry at Serial No. 76 of the Gazette Notification dated 23.11.1998.

While advancing the instant contention, it is imperative for us to closely examine the entry in the Gazette Notification dated 23.11.1998, relied upon by the revision petitioner. A perusal of the aforesaid entry reveals, that three kinds of sales are envisaged therein. Firstly sales by the Forest Department; sales by the U.P. Forest Corporation; and thirdly sales by a private owner of forest. All the aforesaid three kinds of sales are subject to imposition of tax at the rate of 15 per cent at the hands of the manufacturer or importer. This inference has been drawn by us from Column-3 of the aforesaid Notification, which depicts the point at which tax is to be recovered.

Before the plea raised by the learned Counsel for the revision petitioner can be accepted, it is imperative for us to arrive at the conclusion that the timber under reference was grown by M/s East Hope Town Estate, Dehradun and M/s Arcadia Tea Estate, Dehradun in a private forest owned by the said estates. Since admittedly M/s East Hope Town Estate, Dehradun, as also, M/s Arcadia Tea Estate, Dehradun are principally tea planters, it is not possible for us to record a finding at this juncture that they are growing timber in a forest privately owned by them. In fact, there is no material on record of this case on the basis of which, an inference can be drawn that M/s East Hope Town Estate, Dehradun and M/s Arcadia Tea Estate, Dehradun have their Tea Estates on a privately owned forest. Despite our asking, learned Counsel could not invite our attention to any material on the record of the case on the basis whereof it could be inferred that the timber purchased by the revision petitioner was grown by a private owner of a forest. As such, it is not possible for us to accept the solitary contention advanced at the hands of the learned Counsel for the revision petitioner.

For the reasons recorded hereinabove, we find no merit in the instant revision petition and the same is accordingly dismissed.

In view of the conclusions recorded hereinabove, the following substantial questions of law posed for adjudication are answered in favour of the revenue and against the assessee:

A-Whether on the facts and circumstances of the case, the Assessing Authority was justified in law in imposing tax on applicant/revisionist treating him as manufacturer u/s 2(ee) of U.P. Trade Tax Act, where the applicant/revisionist purchased the timber/logs from the Tea Estates who are the registered dealers and proper sale memo were issued to the applicant/revisionist, wherein sale tax registration number was duly printed on the sale memo?

B-Whether on the facts and circumstances of the case, the Assessing Authority was justified in law in interpreting the Government Order dated 23-11-1998 issued by the State Government where it was specifically provided that the even of tax will be deemed to have taken place at the point of sale made by the Forest Department, the U.P. Forest Corporation, or the owner of private forest?