Vineet Kothari, J. - (1.) THE present Sales Tax Revision Petition under Section 86 of the Rajasthan Sales Tax Act, 1994 has been filed by the Revenue aggrieved by the order dated 28.10.2005 passed by the learned Rajasthan Tax Board, Ajmer in Appeal No. 897/2004/Pali for the assessment year 2000 -2001.
(2.) BRIEF facts of the case are that the liability of turn over tax was assessee by the Assessing Authority in respect of the business transactions for the assessment year 2000 -2001 vide Order dated 07.03.2003; and a demand of Rs. 2,453/ - was raised. Being aggrieved of the order dated 07.03.2003, the assessee had further filed appeals before the learned Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur which were allowed vide order dated 16.12.2003, the demand raised by the Assessing Authority was set aside and the matters were remanded. The Revenue had preferred second appeals against the order of the Appellate Authority dated 16.12.2003 which were dismissed by the learned Tax Board vide order dated 28.10.2005. Hence, the present revision petition by the Revenue. Today, both the learned counsels for the parties submit at bar that the issue involved in the present sales tax revision petition regarding turn over tax is squarely covered by the decision of this Court in the case of Assistant Commissioner, Special Circle, Udaipur Vs. M/s. H.E.G. Limited, Rishav Textiles, Rishavdev, Udaipur reported in : (2009) 23 Tax -up Date 22.
(3.) THE relevant portion of the findings of this Court in the case of M/s. H.E.G. Limited (supra) is quoted herein below for ready reference: - "6. Having heard the learned counsels and given thoughtful consideration to the controversy, this Court finds considerable force in the submissions made by the learned counsel for the respondent -assessee. It is true that the notification dtd. 28.6.2003 provides for exemption fee on the basis of slabs of Annual Gross Turnover during the relevant year in column 2 of the said notification and column 3 provides for annual exemption fee and the fee goes on increasing with increasing slabs of annual gross turnover, but the question is the term "annual gross turnover" itself is not defined in the Act itself as such, therefore, one has to necessarily fall upon the definition of "turnover" and "taxable turnover" as defined in Section 2(44) and 2(42) respectively. The said definitions are also reproduced hereunder for ready reference: - "(44) "Turnover" means the aggregate amount received or receivable by a dealer for sales as referred to in clause (3) including the purchase price of the goods which are subject to purchase tax under section 11 of the Act." "(42) "taxable turnover" means that part of turnover which remains after deducting therefrom the aggregate amount of the proceeds of sale of goods: - (i) on which no tax is leviable under this Act; (ii) which have been exempted from tax or which have suffered tax under this Act, subject to other provisions in the Act; and (iii) which are taxable at a point of sale within the state subsequent to the sale by the dealer and such sale is covered by a declaration as may be required under any provisions of this Act or the rules made thereunder". 7. There is no need to over -emphasize that the Rajasthan Sales Tax Act, 1994 has been enacted under the legislative powers conferred upon the State in Entry 54 List II of 7th Schedule to the Constitution of India and has to be abide by the parameters of taxability provided in the Constitution of India read with various relevant Articles, like Article 269, 286 and 265 of the Constitution of India. The State Legislature has no legislative competence to impose tax under this RST Act on a transactions like interstate sales, export sale or branch transfers. This issue is really not disputed by the Revenue and rightly so. Once the power to tax itself is held to be limited or defined under the Act itself, the power to exempt contained in Section 15 cannot fly outside the said scope and ambit of the Act. The non -obstante clause of Section 15 does not give unbriddled or unrestricted power to the State to exempt any goods or transaction taxable under the Act subject to a condition which envisages inclusion of non -taxable turnover within the definition of annual gross turnover used as basis for computing exemption fee. "The power to exempt necessarily pre -supposes power to tax. What cannot be taxed, cannot be exempted by the State. No exemption is required to be granted by the State to a transaction or upon goods which are simply not taxable under the provisions of the Act itself. Thus, exigibility to tax is sine qua non for invoking power to exempt any particular transaction or goods. Therefore, the contention of the learned counsel for the petitioner - Revenue that the non -obstante clause could support the interpretation canvassed by the learned counsel for the Revenue does not cut any ice. The term "Annual Gross Turnover during the relevant year" therefore, has to be read in the context of taxable turnover as defined in Section 2(42) of the Act and as envisaged to be taxed under Section 13A of the Act incorporated for the purpose of imposition of turnover tax under this Act. The term 'annual gross turnover' as used in the said notification, therefore, could not include within its ambit the components of turnover like branch transfers, export sales and inter -state sales as contended by the learned counsel for the petitioner -Revenue. The question posed in the present revision petition deserves to be answered in favour of the respondent -assessee and accordingly, it is held that the assessing authority was not justified in imposing or computing the exemption fee under the notification dtd. 28.6.2003 on the basis of annual gross turnover including therein the turnover representing branch transfers, consignment transfers, interstate sales or export sale made by the assessee during the relevant year. The assessing authority is, therefore, directed to recompute the exemption fee excluding these components from the annual gross turnover and refund excess exemption fees, if any collected from the respondent -assessee with interest @ 12% p.a. From the date of collection till the date of refund, within a period of two months from today. 8. As far as other question relating to levy of concessional rate of tax @ 3% on the diesel is concerned, that question already stands concluded against the petitioner -Revenue by the Apex Court decision in the case of Rajasthan Texchem reported in, (2007) 17 Tax Update 171 (SC) and also various decisions of this Court and that issue is thus, liable to be decided against the petitioner -Revenue. As far as third question of packing material is concerned, since the matter has been remanded back by the appellate authority to the assessing authority, the same deserves to be left open till the issue is decided by the assessing authority. 9. Consequently, these revision petitions of the Revenue are dismissed. No order as to costs.";