TMI Blog1985 (8) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... re: "34. Information to be furnished regarding change of business, etc.-(1) The information under section 40 shall be furnished to the appropriate assessing authority within thirty days of the occurrence of an event referred to therein. (2) If the information under section 40 relates to a branch of any business located outside the jurisdiction of any appropriate assessing authority, the information shall be forwarded by the dealer to the other appropriate assessing authority within whose jurisdiction the branch is situate..............." According to the writ petition, this information was furnished to respondent No. 3, the Sales Tax Officer, Ward No. 42, behind M.S. Building, I.P. Estate. After verification by the Sales Tax Inspector, a new certificate of registration in form ST-9 was issued bearing No. 001915/A in lieu of the old certificate No. 003616. According to the petitioner, there was a fire at the new place of business on 31st May, 1982, at 11-55 P. M., in the night, and various documents have been filed about the fire including the F.I.R. filed at the Police Station, Kashmere Gate, and the certificate issued by the Chief Fire Officer of the Delhi Municipal Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in below mentioned and to such further conditions as may be specified by the Commissioner in the order. CONDITIONS 1.. That the application is made within 30 days of the event, i.e., fire or flood, as the case may be, stating the facts and circumstances in which the loss took place and also stating the evidence on which he relies in support of such facts. The application shall be duly, signed and verified by the dealer in the manner as is provided in respect of returns. 2.. That the loss had taken place at the place of business of the dealer." The important part of this rule, as far as the present case is concerned, is the situation which occurs when there is a loss of the declaration forms due to fire or flood. The conditions prescribed at the end of the above-quoted rule are that the application has to be made within 30 days of the event, i.e., the fire or flood, and that the loss must take place at the place of business of the dealer. The peculiar feature of the present case is that the alleged fire took place on 31st May, 1982, whereas the place of business, according to the petition, was occupied on 27th May, 1982. The information regarding this new place of business was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see was given the benefit of rule 7(3). The assessee then moved this Court for the issue of a writ on which a show cause notice was issued. The opposition to the writ petition is in the form of an affidavit. First, it is claimed that as there is an order of the Appellate Tribunal, Sales Tax, there is an alternative, remedy by way of a reference and this Court should not exercise the writ jurisdiction in view of the existence of an alternative remedy. The other objection is that the questions of fact are involved, which cannot be made the subject-matter of a writ petition. To our way of thinking, a very simple question is involved. The petitioner had 30 days time to intimate the change, i.e., to indicate that a new place of business had been opened. That 30 days time is granted to him by the combined operation of section 40 read with rule 34. Section 40(b) states that if a dealer discontinues his business or changes his place of business or warehouse or opens a new place of business, he has to intimate the prescribed authority within the prescribed time. The time and the prescribed authority are specified in rule 34. When the petitioner opened a new place of business on 27th M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re had broken out at premises No. 2820/17. The order regarding M/s. Mehta Auto Agencies accepting that the conditions in rule 7(3) stood fulfilled is annexure P-4. Learned counsel for the department urged that this petition is not maintainable because an alternative remedy existed by way of a reference. We are doubtful if such an alternative remedy actually exists because the same depends on whether a question of law arises out of the Tribunal's order. The Tribunal has merely rejected the appeals on the ground that the conditions of rule 7(3) are not made out on the facts. This could easily be treated as a finding of fact, so there may not be an alternative remedy. We also note that the assessment orders in this case have been passed for several years according to "best judgment" as books of account have not been produced. It has not been accepted that the books of account were burnt in the fire. So, the assessee would be faced with a finding of fact both on the merits of the assessments as well as on the question whether deduction can be allowed under ST-1 forms. We consider the matter to be too serious, i.e., there is a fire and there is an intimation. There is also a change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Agencies in whose case the factum of fire was accepted and benefit under rule 7(3) was given. We have considered the various possibilities-(a) the petitioner had opened a new place of business where a fire took place on 31st May, 1982, leading to the destruction of his declaration forms and account books, and (b) the petitioner never had a new place of business but taking advantage of the fire in the premises of M/s. Mehta Auto Agencies, made a report to the police on the night of 31st May, 1982, as well as made an application for change of the registration certificate which reached the concerned officials on 5th June, 1982. These two possibilities are certainly both possible. The question is which of these two possibilities is the true one. Certainly, the question which is the true one of these two possibilities cannot depend on the date when the application for amendment of the registration certificate was received under rule 34 read with section 40. Rather, the answer must depend on whether the petitioner had moved his place of business to 2820/17, Gurunanak Auto Market, Kashmere Gate, on 27th May, 1982. In this connection, the statement of the petitioner, Shri Arun Kumar, mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of the intimation under section 40, which was received by the concerned official on 5th June, 1982, the registration certificate was changed with effect from 27th May, 1982. Thus, it is not open to the sales tax authorities to reject the change in the certificate merely on the ground that the intimation was received on 5th June, 1982. In this connection, there is one rule which is quite important and that is rule 16 regarding applications for registration. There are two forms appearing at the end of the rule. Form ST-8 is the certificate of registration for a dealer having only one place of business and form ST-9 is a certificate of registration for a dealer having more than one place of business. Originally, the petitioner had only one place of business, so the registration certificate was in form ST-8. After the additional place of business had been intimated, this certificate was altered to one in ST-9. In this form there is a place for specifying the additional places of business and warehouses. Thus, we must take it for granted that the petitioner had moved to 2820/17, Gurunanak Auto Market, Kashmere Gate, and the change by issue of a new certificate of registration in form ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
