Kiran Stone Crusher vs State of Orissa

Indrajit Mahanty, J.—In the present revision by the Order Dated 30.6.1998, the following question of law was framed.

Whether on the facts & in the circumstances of the case, the transportation charges, which was separately charged, is liable to be taxed under the Act ?

Mr. Paikray, Learned Counsel appearing for the Petitioner submitted that the Petitioner was assessed u/s 12(8) of the O.S.T. Act for the years 1984-85 & on a finding that the Petitioner had adopted colourable devices to avoid tax liability on transportation charges collected by it enhancing the turn over thereon Rs. 1 lakh & recomputing the tax payable as well as levy of penalty thereon amounting to Rs. 52,080.

The Petitioner preferred an appeal against the aforesaid order of assessment u/s 12(8) of the O.S.T. Act & the Appellate authority came to allow the appeal by applying the ratio of the Judgment of this Court in the case of Ranisati Mining Traders v. Sales Tax Officer 53 STC 322 & came to hold that since the cost of freight was not borne by the seller j supplier & the purchaser paid for the same & it was charged separately, the amount received as transport charges was found to be deductable from the GTO of the purchaser. Accordingly, the order of the u/s 12(8) was quashed. Assessing Officer

The Revenue preferred a second appeal before the Tribunal & the Tribunal reversed the order of the First Appellate authority & confirmed the order of the Assessing Authority.

In the light of the aforesaid facts, Mr. Paikray, Learned Counsel for the Petitioner submitted that it has already boon settled by this Court in the case of Ranisati Mining Traders (supra) that the expression "taxable turnover" u/s 5(2)(A) of the Act would mean that part of a dealer''s gross turnover during any period which remains after deducting therefrom various items are incorporated thereunder & Sub-clause (iii) is one that provides for the cost of outward freight or of delivery or the cost of installation for the purpose of sale or supply of goods by the dealer, when such cost is separately charged & the charge, be excluded before reaching taxable turnover.

Learned Counsel for the Revenue, on the other hand, submitted that the Petitioner had originally not disclosed the transportation charges received by him in his original returns & was assessed u/s 12(4) of the Act. In view of the fact that suppressed turnover was detected, the Petitioner was assessed u/s 12(8) & the Assessing Authority came to a finding that since the Petitioner had suppressed receipt of transportation charges, its gross turnover was enhanced & the tax & penalty was levied thereon. Learned Counsel for the Revenue further asserts that since the Petitioner had suppressed the turnover & the transportation charges received by it, it cannot be permitted to claim deduction u/s 12(2)(a) of the Act.

In response to the aforesaid contentions, Learned Counsel for the Petitioner placed reliance on a decision of the High Court of Mysore in the case of Giridharilal Paras mal v. The State of Mysore 1967 (20) STC 64 & in particular, the finding of the Court in paragraph-6 thereof, which is quoted herein below:

When the facts are not disputed & the law is so clear, we fail to understand how the assessing authorities could at all impose tax. We are clearly of the opinion that the duty of the assessing officers is not merely to impose tax that is lawfully exigible but also to give to the assessees the benefit of any reduction or exemption that may become due to them upon facts actually found to be true by the assessing authorities, whether or not the assessees, out of ignorance or by mistake, make a claim thereto. When the mistake is so obvious & the matter is taken up on appeal, we are of the opinion that it is the duty of the Appellate authorities to correct the mistake.

Apart from the above, Learned Counsel for the Petitioner also places reliance on the Judgment of the Hon''ble Supreme Court in the case of Commissioner of Income Tax, Delhi Vs. Mahalaxmi Sugar Mills Co. Ltd., & in particular, the findings arrived at in Paragraph -12 thereof which is quoted hereinbelow:

x x x In the second place there is a duty cast on the Income Tax Officer to apply the relevant provisions of the Indian Income Tax Act for the purpose of determining the true figure of the assessee''s taxable income & the consequentially tax liability. Merely because the assessee fails to claim the benefit of a set-off (it) cannot relieve the Income Tax Officer of his duty to apply Section 24 in an appropriate case.

On consideration of the submissions advanced by the Learned Counsel for both the parties, we find from the first Appellate order that the Appellate authority came to the following findings:

In the instant case there is a contract, the purchase order which stipulates as follows:

Cost of Metal Rs. 60.00 per CUM Sales Tax Rs. 4.80 per CUM T.O.T.... Rs. 0.32 per CUM Transport Rs. 97.88 per CUM Total Rs. 163.00

Even though the contract stipulates delivery at purchaser''s site, the cost of freight is not to be borne by the seller/supplier. The rate agreed upon i.e. Rs. 163 was not at all inclusive price to become in which the consideration money it was mutually agreed upon that the price would be Rs. 60 per Cum. & the purchaser would also be liable to pay transport charges '' Rs. 97.88 per Cum. When the dealer gets Rs. 163, it is not entirely the consideration money for sale or goods at all, it includes Rs. 97.88 towards freight which the purchaser was to pay but the seller has/will have to include on behalf of the purchaser.

Once a finding on facts has been arrived at by the statutory authority & the same is not disputed by the Revenue in course of the present proceeding, the aforesaid facts clearly establishes that the cost of transportation is the cost of delivery of materials at the site of the purchaser & therefore, definitely covered u/s 5(2)(A)(a)(iii) of the O.S.T. Act.

In so far as the objection raised by the Revenue is concerned, in view of the Judgments in the case of Giridharilal Parasmal (supra) & in the case of Commissioner of Income Tax, Delhi (supra), it is well settled that the statutory authorities are required under law to apply relevant provisions of the O.S.T. Act for the purpose of determining the true figure of the assessee''s taxable income & thereafter, the tax liability. Merely because the assessee failed to disclose any particular part of turnover does not amount to relieving the statutory authority from such an obligation. In course of 12(8) assessment, the Assessing Authority was required to re-determine the gross turnover as well as taxable turnover & in coarse of such determination, he was statutorily bound to give deduction as admissible in law to the assessee. The Assessing Authority cannot justify such omission on the ground of the assessee having suppressed any part of his turnover.

In view of the above findings, we answer the question framed, in favour of the assessee & against the Revenue & hold that the transportation charges charged separately are liable to be deducted from the gross turnover of the assessee as provided u/s 5(2)(A)(a)(iii) of the O.S.T. Act.

Accordingly, the order of the Sales Tax Tribunal is quashed & the order passed by the first Appellate authority stands confirmed.

The revision is allowed to the extent indicated above.

B.P. Das, J.

I agree.