Partly allowed

The State of a.P., v. M/s. Maheswari Bottels

Telangana HC11 Mar 2014TREVC/116/2012

Case brief

AI extract

What is this about?

In this tax revision, the High Court set aside the Sales Tax Appellate Tribunal's order which had exempted the sale of empty bottles as a second sale. The Court held that the sale of cleaned empty bottles by the dealer amounts to a first sale and ordered the payment of tax at 4% under the Andhra Pradesh Value Added Tax Act, 2005.

What did the court decide?

The Tax Revision Case was allowed; the Tribunal's order of 10.02.2012 was set aside; the assessee is liable to pay tax at 4%.

The State of a.P., Vs M/s. Maheswari Bottels — Income Tax | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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TAX REVISION CASE No.116 of 2012

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ORDER: (Per the Hon’ble Sri Justice Ashutosh Mohunta)

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This revision is filed by the State aggrieved by the order dated 10.02.2012 passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, Visakhapatnam Bench, in T.A.No.898 of 2003 vide which the appeal filed by the assessee was allowed, holding that the sale of empty bottles by the dealer constitutes second sale, as such, it is exempted from payment of tax.

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Brief facts of the case are that the respondentM/s. Maheswari Bottles, Vijayawada, is a registered dealer on the rolls of the Commercial Tax Officer, Krishnalanka Circle. The respondent is a dealer in empty bottles, which it procures from various sources and again resells to the distilleries. Further, the same are subjected to cleaning process. The dealer effected sales of the empty bottles for the Assessment Year 1999-2000 and claimed exemption from payment of tax. The Commercial Tax Officer treated the sale of empty bottles to be the first sale and levied tax at 4%. Against the order passed by the Commercial

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Tax Officer, the assessee preferred an appeal before the Appellate Deputy Commissioner, who also upheld the order of the Commercial Tax Officer.

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Aggrieved by the two orders, the assessee filed an appeal before the Sale Tax Appellate Tribunal, which has allowed the appeal vide the impugned order holding that the sale effected by the dealer tantamounts to a second sale and the resales are exempted from payment of any tax. Aggrieved by the same, the State preferred this revision.

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Notice to the respondent had been issued. However, no one has put up appearance despite having been served.

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The short question that arises for consideration in the present case is:

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“Whether the sale of the empty bottles (used bottles) made by the respondent/dealer amounts to a second sale or a first sale?”

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Learned counsel for the petitioner has placed reliance on the judgment in Sree Manasa Enterprises, Peerzadiguda, Ranga Reddy District v. Commercial Tax Officer, Nacharam Circle,

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Hyderaba d^[1] , wherein it has been held that empty bottles which have ceased to retain the identity of bottles containing liquor are liable to be taxed as packing material under Section 4(3) read with item 90 of Schedule IV at 4% under the A.P.Value Added Tax Act,

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2005.

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The facts in Sri Manasa Enterprises’ case (supra) are identical to the facts in the present case. In the said case, the bottles in issue were beer and liquor bottles. The question that arose in the said case was whether the sale of beer and liquor bottles purchased from hawkers and other un-registered dealers and sold to the distilleries amounted to second sale or not. It was held that the sale of the empty bottles tantamounts to first sale and are exigible to tax.

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In view of the above, this Tax Revision Case is allowed and the order dated 10.02.2012 passed by the Sales Tax Appellate Tribunal, Visakhapatnam Bench, is set aside. It is made clear that the assessee is liable to pay tax @ 4% under Section 4(3) read with item 90 of Schedule IV of the A.P.Value Added Tax Act, 2005.

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Miscellaneous Petitions pending, if any, shall stand dismissed. There shall be no order as to costs.

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JUSTICE ASHUTOSH MOHUNTA.

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JUSTICE M. SATYANARAYANA MURTHY.

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Date : 11-03-2014

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pab

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[1] 2009 (Volume 49) A.P.Sales Tax Journal 222

The State of a.P., v. M/s. Maheswari Bottels

Case brief

What is this about?

What did the court decide?

The State of a.P., v. M/s. Maheswari Bottels

Case brief

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