J.P.Bansal, Judicial Member - (1.) BOTH these applications filed under Section 8(1) of the Rajasthan Taxation Tribunal Act, 1995, and directed against the provisional assessment orders dated February 1, 1996 for the assessment years 1994 -95 and 1995 -96 passed under sections 7B, 16(1)(i), 11 -B(f) of the Rajasthan Sales Tax Act, 1954 (for short, "the Act") arise in the facts and circumstances to be stated as hereunder.
(2.) SINCE both these applications involve the common questions of law and fact they are being disposed of by a common judgment. For the sake of convenience we take up for consideration the application No. 44 of 1996 pertaining to the assessment year 1994 -95. It has been alleged that the applicant -firm carries on its business of refining kalmi shora at Hanumangarh. It refines this kalmi shora into a substance called salt peter and thereafter sells it off. One of its partners by name Shri Kamal Prakash Biyani obtained from the Mining Department a mining licence on February 28, 1985 for extracting from the mine the Kalmi Shora for its being refined as salt peter. This mining lease, though in the name of the partner Shri Kamal Prakash Biyani, is being operated by the applicant -firm. All its accounts are being kept by the applicant -firm. The transactions concerning it are duly entered and accounted for in the books of account of the firm. It had never purchased kalmi shora from its partner Shri Kamal Prakash Biyani. The regular assessments of the applicant -firm were being regularly done and finalised by the regular assessing authorities on the basis of all these facts.
(3.) A survey of the business premises of the applicant -firm was conducted on December 14, 1995 by the non -applicant, the Commercial Taxes Officer, Anti -Evasion, Sriganganagar, who issued to the applicant -firm a notice to show cause as to why the kalmi shora obtained from the mine the lease of which stood in the name of Shri Kamal Prakash Biyani could not be taken to be a transaction of purchase by the applicant -firm from Shri Kamal Prakash Biyani and purchase tax be levied thereon. This notice dated January 3, 1996 was replied to on behalf of the applicant -firm on January 25, 1996. The position taken up by the applicant -firm was that the mine is being operated and worked by the applicant -firm itself of which Shri Kamal Prakash Biyani is a partner. Applicant -firm is responsible/liable for all the mining operations. No purchase tax is liable to be paid for the reason that no transactions of sale or purchase took place between the applicant -firm and its partner Shri Kamal Prakash Biyani. Shri Biyani does not operate the mine in his individual capacity. In spite of this the non -applicant on February 1, 1996 made a provisional assessment order, thereby creating a huge demand of Rs. 9,95,505 including penalty of Rs. 6,01,506. In the case of application No. 45 of 1996 for the assessment year 1995 -96 the amount so demanded is Rs. 1,66,671 including the penalty of Rs. 1,06,847. Demand notices were issued. In the counter filed on behalf of the non -applicant it has been admitted that Shri Kamal Prakash Biyani is a partner of the applicant -firm. The position taken up is that since Shri Biyani holds the licence in his name it shall be considered that the mining operations are being done by him in his individual capacity and the Kalmi Shora extracted from the mine is sold by him to the applicant -firm. Hence purchase tax is payable. The provisional assessment orders dated February 1, 1996 and the demand notices issued thereafter are valid and proper.;