Case Law Details

Case Name : CTO, Circle-B, Bhilwara Vs. M/s Amit Conductors (Rajasthan High Court)
Appeal Number : S. B. Civil Sales Tax Revision Petition No. 458/2004
Date of Judgement/Order : 11/10/2011
Related Assessment Year :

CTO, Circle-B, Bhilwara Vs. M/s Amit Conductors (Jodhpur High Court)– Assessing Authority while invoking its power under Section 37 of the Act appears to have been misled, upon a misreading of judgement of Division Bench of this Court in the case of Jaipur Metals & Electrical Ltd. (supra). The said decision of the Division Bench nowhere lays  down that aluminium conductors wires/copper conductors wires etc. along-with other commodities with which the Division Bench was concerned, while interpreting the notification dated 02.11.1965.

On the other hand, the Entry No. 29 providing for rate of tax @ 5%, as quoted above, dealt-with all plants and equipment and their accessories required for generation, transmission or distribution of electric power. There appears to be an apparent misreading of said judgement by the learned Assessing Authority while applying Entry 81 providing for rate of tax at 12% in the present case for the assessment year 1996-97. Therefore, the very foundation of the impugned order under Section 37 of the Act was not even available to the Assessing Authority.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, AT JODHPUR 

S. B. Civil Sales Tax Revision Petition No. 458/2004

CTO, Circle-B, Bhilwara Vs. M/s Amit Conductors

Date of Order- 11th October, 2011

O R D E R

1. This revision petition has been filed by the petitioner-

Revenue against the order of the learned Tax Board dated 31.03.2004 whereby the learned Tax Board dismissed the Revenue’s appeal No. 1046/2003/Bhilwara upholding the order of the Deputy Commissioner (Appeals) dated 26.12.2002. The learned Tax Board held for assessment year 1996-97 that the rate of sales tax applicable on the sale of aluminium conductors manufactured by the respondent assessee M/s Amit Conductors, Gulabpura was correctly applied @ 10% under the residuary entry No.81 of Notification S No. 1037 dated 15.03.1996; and the learned Assessing Authority was not justified in invoking rectification powers under Section 37 of the RST Act, to impose difference tax of 2% by holding that such aluminium conductors (wires) would be taxable @ 12% for the relevant period under Entry No.81 of the aforesaid notification dated 15.03.1996. The entry No.81 of the said notification is reproduced herein below for ready reference:

(a)  All kinds of electrical goods, including casing, electric fans, lighting bulbs, electric earthenware, electric porcelain ware and parts and accessories thereof;

(b) Electrically operated anti-mosquito devices and repellents used therein, room fresheners including those operated electrically or with manual sprayers;

(c) Electronic home appliances including parts and accessories thereof.” 12%

Learned counsel for the petitioner-Revenue, Mr. Sharad Tatiya for Mr. V.K. Mathur, submitted that aluminum conductors being electrical goods, were correctly taxable @ 12% and the Assessing Authority was justified in relying upon the Division Bench decision of this Court in the case of State of Rajasthan Vs. Jaipur Metal & Electricals Ltd. reported in (1981) 48 STC 66. Therefore, he submitted that the learned Tax Board has erred in rejecting Revenue’s appeal.

3. On the other hand, Mr. Sanjeev Johari, learned counsel for the respondent-Assessee submitted that the order of the Tax Board deserves to be upheld on the following counts viz.:

(i) that powers of rectification under Section 37 of the Act could not be invoked to impose difference rate of tax on a issue, which was highly debatable. Whether the goods in question fall under entry 81 or not, requires a debate and same could not be said to be an error apparent on the face of record in the original assessment order, and therefore, the rectification under Section 37 of the Act was not possible.

(ii) that the Division Bench decision of this Court in the case of S.B. STR No. 458/2004 CTO, Circle-B, Bhilwara Vs. M/s Amit Conductors Order dated: 11/10/2011 Jaipur Metals and Electrical Ltd. (supra) has not even laid down that the aluminium conductors along with copper category wires/conductors were electrical goods of type contained in Entry 81 in the notification dated 15.03.1996 applicable to the present assessment year 1996-97. On the other hand, the Entry No. 29 dealt with by the Division Bench of this Court reads as under, which was held applicable for applying the rate of tax on 5% as against the 10% imposed by the Assessing Authority treating such conductors as electrical goods.

“29. All plants and equipment and their accessories (including service meters) required for generation, transmission or distribution of electric power.” 5% He, therefore, submitted that the learned Assessing Authority completely misapplied the said Division Bench decision while invoking powers under Section 37 of the Act to impose such difference rate of tax.

(iii) Thirdly, he submitted that in absence of any specific entry in the notification dated 15.03.1996 covering the sale of aluminium conductors (wires), used for transmission of power was rightly taxed in the original assessment @ 10% under the residuary entry of the said notification dated 15.03.1996 and difference rate of tax of 2% under Entry 81, quoted above, could not be imposed on the respondent-Assessee.

Having heard learned counsel for the parties, this Court is of the opinion that the learned Tax Board was justified in rejecting Revenue’s appeal in the present case. The aluminium conductors (wires) manufactured by the respondent-Assessee apparently used for transmission of power from one point to another, are not electrical goods covered by Entry No. 81, quoted above, which apparently covers electrical goods like casing, electric fans, lighting bulbs, electric earthenware, electric porcelain ware & parts and accessories thereof and electronic home appliances etc. The commodity in question is quite different and cannot fall within the ambit and scope of Entry 81. Therefore, it was rightly taxed under the residuary entry @ 10% by the learned Assessing Authority at the time of passing original assessment order. Even if by a remotest argument such wires/ aluminium conductors could be said to be electrical goods, such a position is not apparent and clearly discernible from the said Entry 81 and it may require great amount of reason, logic, leading of evidence etc. Such process of reasoning and debate is ruled out by the words “mistake apparent on the face of record”, employed in Section 37 of the Act dealing with powers of Assessing Authority to rectify the apparent mistake in the original assessment order.

This Court is further of the opinion that the Assessing Authority while invoking its power under Section 37 of the Act appears to have been misled, upon a misreading of judgement of Division Bench of this Court in the case of Jaipur Metals & Electrical Ltd. (supra). The said decision of the Division Bench nowhere lays down that aluminium conductors wires/copper conductors wires etc. along-with other commodities with which the Division Bench was concerned, while interpreting the notification dated 02.11.1965. On the other hand, the Entry No. 29 providing for rate of tax @ 5%, as quoted above, dealt-with all plants and equipment and their accessories required for generation, transmission or distribution of electric power. There appears to be an apparent misreading of said judgement by the learned Assessing Authority while applying Entry 81 providing for rate of tax at 12% in the present case for the assessment year 1996- 97. Therefore, the very foundation of the impugned order under Section 37 of the Act was not even available to the Assessing Authority.

Therefore, the appellate authorities were justified in setting aside such order under Section 37 of the Act passed by the Assessing Authority and holding in favour of respondent-Assessee that additional rate of tax of 2% applied in the present case was not correct. No interference in the impugned order of the learned Tax Board is called for in the revisional jurisdiction of this Court under Section 86 of the RST Act.

Consequently, the present revision petition filed by the Revenue is found to be devoid merit and same is accordingly dismissed. No costs.

DR. VINEET KOTHARI), J

NF

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