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TMI Blog2004 (1) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... , Devish P., Ms. Savithri Pandey, P.P. Singh, B.B. Singh, M.N. Shroff, G. Prakash, N. Ganapathy, K. Ram Kumar, V. Krishnamurthy and V. Ramasubramaniam for the parties. -------------------------------------------------- The judgment of the Court was delivered by S.B. SINHA, J.-Leave granted in S.L.P. (Civil) No. 5579 of 2001. 2.. Interpretation of section 6-A of the Central Sales Tax Act, 1956 is involved in these appeals and the writ petition. The appeals arise out of judgments and orders dated March 12, 1999 passed by the Tamil Nadu Sales Tax Appellate Tribunal in T.A. Nos. 353, 456 and 457 of 1997 and 47 of 1998; dated November 13, 2000 in S.T.A. No. 459 of 1999; dated November 14, 1997 in Appeal No. 383 of 1996; and dated December 2, 1997 in Tax Case (Revision) No. 1096 of 1990 passed by the High Court of Madras. 3.. The writ petition under article 32 was filed by the petitioner, inter alia, for declaring that section 9(2) of the Central Sales Tax Act, 1956 designating the authorities of the movement State to adjudicate upon the situs of sales and character of a transaction in the course of an inter-State sale, whether as falling under section 3 or under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other automobile parts to the branches stating: "The dealers have got 26 branch sales depots in other States. They have despatched their products-chassis, spare parts, etc., to their own sales depots in other States for sales and the goods involved in the stock transfer have moved from Tamil Nadu to other State as 'stock transfer', i.e., the movement was occasioned by reason of branch transfer and not by reason of sale. The despatches are supported by stock transfer invoices, transport details and form F. These records have been verified with the exemption claimed." 5.. An order of assessment for the year 1987-88 dated August 28, 1991 was passed finding: "The dealers have filed detailed statement of stock transfer of vehicles to their outside State regional sales offices and spares to their warehouses. The statement was verified in detail with reference to form 'F' declaration filed by them and despatching documents. The dealers have also filed completed assessment orders of their regional sales offices in other States. Their claim was examined in length and found to be in order. The form 'F' filed by them are accepted and the exemption granted." (Underlining is mine for emphas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Tamil Nadu authorities to reopen an assessment completed despite acceptance of declaration in form F, the Madras High Court by a judgment and order dated June 13, 1996 dismissed the said writ application, inter alia, holding that they had no jurisdiction to grant any relief. Thereafter the reassessment was completed and penalty was imposed. JUDGMENT OF THIS COURT: The matter came up for consideration before this Court in Ashok Leyland v. Union of India since reported in (1997) 9 SCC 10 [1997] 105 STC 152 (SC). at the instance of the appellant herein; and upon referring to the decisions rendered in Balabhagas Hulaschand v. State of Orissa See [1976] 37 STC 207 (SC). (1976) 2 SCC 44, Izhar Ahmad Khan v. Union of India [1962] Supp 3 SCR 235, Sodhi Transport Co. v. State of U.P. See [1986] 62 STC 381 (SC). (1986) 2 SCC 486 and several others, this Court by a judgment dated February 20, 1997 See [1997] 105 STC 152 (SC). held: (a) Section 6A does not create conclusive presumption as contended on behalf of the assessee. (b) An order of assessing authority accepting form F, whether passed during the assessment or at any point earlier thereto, forms part and parcel of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attitude adopted by the sales tax authorities in Tamil Nadu is not conducive of judicial conduct as they are predetermined to treat the transactions as inter-State sale and levy tax thereon ignoring the fact and correct legal situation, but did not express any opinion on the correctness or otherwise of the said submissions. It, however, felt the necessity of evolving a Central mechanism which would decide once for all questions of this nature. Elucidating certain instances, it was opined that although the assessment proceedings before certain States had become final, this Court in exercise of its jurisdiction under article 32 or 136 or 142 of the Constitution of India may issue appropriate directions, whereupon the following directions were issued: "23...........Let the Tamil Nadu assessing authorities first decide the matters before them. Thereafter, if the orders are against the appellant, we permit the appellant to file the appeal(s) directly before the Tribunal. If the Tribunal decides in favour of the appellant, no further question would arise. But if it decides against the appellant, to wit, if it holds that the sale of vehicles to the S.T.Us of various States are inter-S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 2, Union of India, for assisting the court in these proceedings. The office may obtain orders from honourable the Chief Justice for placing these matters before an appropriate Bench of three learned Judges." 11.. Notices, pursuant to the said directions, were issued to the concerned States. Thereafter, even for the subsequent periods also the Appellate Tribunal upheld the order passed in Indicarb Limited which are also the subject-matter of challenge before us. PARLIAMENTARY INTERVENTION: We may notice that having regard to the several orders passed in the connected matter, the Parliament enacted that Central Sales Tax (Amendment) Act, 2001 and Finance Act, 2002. Suggestions, as regards certain provisions of the said Acts, however, having been mooted at the Bar, the matter is said to be receiving fresh consideration at the hands of the Central Government. 12.. It is also not in dispute that by enacting the Central Sales Tax (Amendment) Act, 2001 by Central Act 20 of 2002, which came into force from May 11, 2002, section 2(g) of the Act has been substituted by a new sub-section by which the definition of "sale" has been widened to include the deemed sales defined by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therewith. 14.. The learned counsel would submit that the word "determination" signifies expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law. 15.. Mr. Parasaran would contend that in terms of section 6-A of the Central Act, as it then stood, the assessee had two options, namely, to file form F or subjected himself to an assessment proceeding. If the assessee opts to file a declaration in terms of form F, whereupon an order is passed holding an enquiry by the assessing authority; the same being conclusive in nature, no proceeding for reopening the same would be permissible in law. Reliance in this connection has been placed on Izhar Ahmad Khan [1962] Supp 3 SCR 235, Balabhagas Hulaschand See [1976] 37 STC 207 (SC). (1976) 2 SCC 44 and Mahant Dharam Das v. State of Punjab [1975] 3 SCR 160. 16.. The learned counsel would argue that the expressions "for the purpose of the Act" would imply "for the purpose of all the provisions of the Act" and, thus, once an order is passed under sub- section (2) of section 6-A of the Central Act, section 9(2) thereof will have also no application whatsoever. Reliance in this behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act cannot be given a higher status than the State Act or section 9(2) of the Central Act inasmuch as an order passed in terms of sub-section (2) thereof is passed merely in aid of assessment and in that view of the matter if an order of assessment can be appealed against or subjected to a reopening proceeding, the same legal provisions must be held to be applicable also in relation to an order passed under sub-section (2) of section 6-A. 21.. Mr. Ganguli has drawn our attention to the findings of the Tribunal to the effect that raids were conducted by the authorities and that the appellant herein had escaped proper assessment by taking recourse to suppressio veri and suggestio falsi. According to the learned counsel, as fresh materials had been discovered, a reasoned show cause notice was issued and pursuant thereto and in furtherance thereof, the impugned orders had been passed, and in that view of the matter no case has been made out for interference therewith. STATUTORY PROVISIONS: "Sale" has been defined in the Tamil Nadu General Sales Tax Act, 1959 as: "2(n) 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of five years from the date of order of the final assessment by the assessing authority determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment. (b) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at any time within period of five years from the date of order of the final assessment by the assessing authority reassess the tax due after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such reassessment." 24.. In case of wilful non-disclosure of assessable turnover by the dealer while passing an order of reassessment, penalty can also be imposed. Sub-section (3) of section 16 provides for the manner in which limitation is to be computed. Section 31 of the Act provides for appeal. 25.. The relevant provisions of the Central Sales Tax Act, 1956 are as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person to another for cash or deferred payment or for any other valuable consideration, and includes,- (i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) a delivery of goods on hire-purchase or any system of payment by instalments; (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) a supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (vi) a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration; but does not include a mortgage or hypothecation of or a charge or pledge on goods; (j) 'turnover' used in relation to any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods. (2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall be deemed for the purposes of this Act to have been occasioned otherwise than as a result of sale. Explanation.-In this section, 'as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm of Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, charging or payment of interest, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly." Form "F" which is relevant for the purpose of the case reads thus: ORIGINAL THE CENTRAL SALES TAX (REGISTRATION AND TURNOVER) RULES, 1957 FORM F [Form of declaration to be issued by the transferee] [See rule 12(5)] Serial No................................................. Name of the issuing State.................... Office of issue........................................ Date of issue.................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riated by the States.-(1) Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List shall be levied by the Government of India but shall be collected- (a) in the case where such duties are leviable within any Union Territory, by the Government of India, and (b) in other cases, by the States within which such duties are respectively leviable. (2) The proceeds in any financial year of any such duty leviable within any State shall not form part of the Consolidated Fund of India, but shall be assigned to that State. 269.. Taxes levied and collected by the Union but assigned to the States.-(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2). Explanation.-For the purposes of this clause,- (a) the expression 'taxes on the sale or purchase of goods' shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te imposing, or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." 29.. Paragraph 16 of Second Report of the Law Commission of India States: "16. The question whether on the analogy of the principles adopted in connection with sales or purchase in the course of import or export, a sale effected by the transfer of documents during the movement of goods from one State to another should be regarded as an inter-State sale or purchase has received our careful consideration. We are of the view that such sales or purchases should be regarded as inter-State transactions. It was suggested that if the rate of inter- State tax happened to be lower than the rate of tax levied by the State on intra-State transaction the adoption of this principle might lead to attempts by dealers to evade the higher tax of the State by giving intra-State transactions the appearance of inter-State transactions by the creation of fictitious records showing the movement of the goods from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave the power to declare by law the goods which are of special importance in inter-State trade or commerce and also to specify the restrictions and conditions to which any State law (whether made before or after the Parliamentary law) will be subject in regard to the system of levy, rates and other incidents of the tax on the sales or purchase of those goods." 31.. Pursuant to or in furtherance of the report of the Law Commission of India, article 286 was amended. Article 286(3) now reads as under: "(3) Any law of a State shall, in so far as it imposes, or authorises the imposition of,- (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or sub-clause (d) of clause (29A) of article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify." 32.. The history of legislation as also constitutional amendments in relation to inter-State movement of goods has been noticed in State of A.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the dispute can be determined as expeditiously as possible amended section 6-A. Section 6 of the Act provides for liability to tax on inter-State sales in terms whereof every dealer is liable to pay tax thereunder on sales effected by him in the course of inter-State trade or commerce subject to the exception contained in the proviso appended thereto. Such tax would be leviable notwithstanding the fact that no tax is leviable either on seller or the purchaser under the State tax laws of the appropriate State if that sale had taken place inside the State. 34.. The liability to tax on inter-State sale as contained in section 6 is expressly made subject to the other provisions contained in the Act. Sub-section (2) of section 9, on the other hand, which is a procedural provision starts with the words "subject to the other provisions of this Act and the rules made thereunder". Section 6-A provides for exception as regard the burden of proof in the event a claim is made that transfer of goods had taken place otherwise than by way of sale. Indisputably, the burden would be on the dealer to show that the movement of goods had occasioned not by reason of any transaction involving sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition. It merely strengthens the provisions of sub-section (2) of section 3-AA, i.e., unless the dealer proves otherwise, every sale shall, for the purpose of sub-sections (1), be presumed to a consumer. The combined effect of sub-sections (1), (2) and (3) of section 3-AA of the Act is that tax would be payable if the goods in question, i.e., cotton yarn, in this case, are sold to a dealer for consumption. Unless the dealer proves otherwise every sale by a dealer shall for the purpose of sub-section (1) be presumed to be a sale to a consumer. A sale of any of the goods mentioned in sub- section (1) to a registered dealer who does not purchase them for resale in the same condition, without processing or sale to unregistered dealer shall be deemed to be a sale to the consumer. Therefore, a registered dealer has to prove that a sale to another registered dealer or an unregistered dealer is not for consumption. In order to facilitate the working of the Act, by rule 12-A a method of proving has been provided that the sale is not a sale to the consumer. The reading of the rule along with relevant provisions of the Act leads to the conclusion that rule 12-A method, furnishing of cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Evidence Act, sections 41, 112 and 133 deal with conclusive presumptions. Even in other enact- ments, like the Indian Companies Act, 1956, such provisions exist. 39.. In the case at hand it is necessary to determine whether section 6-A of the Central Sales Tax Act sets up a conclusive presumption. "Presumptions may be looked upon as the bats of law, flitting in the twilight, but disappearing in the sunshine of facts." 40.. This metaphor used by Cochran, J., in Stumpf v. Mantgomery (1924) 101 OKL 256 Pac 85. pithily States the law. 41.. However, the rule of conclusive proof stands on a different footing. Once it is held, as we do, that section 6-A of the Central Act provides for a conclusive proof, except on a limited ground, reopening of assessment would not be permissible. RULE OF CONCLUSIVE PRESUMPTION: SOME CASE LAWS: In several cases validity of rules of conclusive presumptions has been upheld. 42.. However, in Ashok Leyland See [1997] 105 STC 152 (SC). (1997) 9 SCC 10, it was held: "......section 6-A does not create a conclusive presumption and that an order accepting form 'F', whether passed during the assessment or at any point earlier thereto, is ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion it was observed: "A rule of conclusive presumption made with a view to affect specified substantive right was a rule of substantive law and did not cease to be so because it rested on a fact which was relevant to it. The test was not one of relevancy but whether it was intended to affect a specified substantive right or provide a method of proof." The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. (1994) 2 SCC 323. In the case at hand, a statutory authority that had jurisdiction to pass such an order has passed the order. In addition there is no provision for appeal, which goes to show that this is part of the substantive law and not procedural law. This order is conclusive for all purposes, as the above two stated elements clearly go out to show. No appeal has been provided for depicting the will of the Legislature to make the order of such authority final. 45.. In Municipal Board, Hapur v. Raghuvendra Kripal AIR 1966 SC 693 this Court stated: "....The provision making the notification conclusive evidence of the proper imposition of the tax is conceived in the best interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that can be conducted by the assessing authority under section 6A(2) of the Act, is certainly for him to decide. It is his duty to verify and satisfy himself that the particulars contained in the declaration furnished by the dealer are 'true'. As a quasi-judicial authority, the assessing authority should act fairly, and reasonably in the matter. During the course of the enquiry, under section 6A(2) of the Act, it is open to him to require the dealer to produce relevant documents or other papers or materials which are germane or relevant, to find whether the particulars contained in the declaration (F forms) are 'true'. It is not possible to specify the documents or other materials or papers that may be required, to be furnished in all situations and in all cases. It depends upon the facts and circumstances of each case. The power vested in the officer is a wide discretionary power, to find, whether the particulars contained in the declaration (F forms) are 'true'. It is not possible or practicable to lay down the exact documents or materials that may be required in all the cases, by the assessing authority, to come to a proper and just finding as required by section 6A(2) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that, "the word 'deemed' is used a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the Legislature has made such a deeming provision." 53.. The court went further to quote the position taken in St. Aubyn v. Attorney-General [1951] 2 All ER 473, wherein Lord Radcliffe observed thus: "The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible." 54.. In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. (2003) 2 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In absence of any indication that the Parliament while enacting sub-section (2) of section 6-A did not intend to make the deeming provisions to be a conclusive fact as regard occasion of the transaction having taken place otherwise than as a result of sale, it would have dealt with the matter differently. 59.. Section 6-A(2) of the Act uses the following expressions which are important: (1) "thereupon"; (2) "for the purpose of this Act"; (3) "the movement of goods to which the declaration related shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale". Each of them must be given its proper meaning. 60.. A statute for the purpose of its interpretation must be read in its entirety. It is to be given a purposive construction. Applying Heydon's rule, it must be held that the amendment was necessitated not only to make the dealer to file such a declaration imperatively but also to see that such movement of goods becomes inter-State sale by raising a legal fiction, as "having been occasioned in course of an inter-State sale". In other words, if such a declaration is filed and on an inquiry made pursuant to or in furtherance of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t some details recently in 20th Century Finance Corpn. Ltd. v. State of Maharashtra See [2000] 119 STC 182 (SC). (2000) 6 SCC 12 stating: "While examining the power of State Legislatures under entry 54 of List II in earlier part of this judgment, we have noticed that the situs of the sale or purchase is wholly immaterial as regards the inter-State trade or commerce, as held in Bengal Immunity Co. Ltd. case See [1955] 6 STC 446 (SC). AIR 1955 SC 661: [1955] 2 SCR 603. Further, the State Legislature cannot by law, treat sales outside the State and sales in the course of import as 'sales within the State' by fixing the situs of sales within its State in the definition of sale, as it is within the exclusive domain of the appropriate Legislature, i.e., Parliament, to fix the location of sale by creating legal fiction or otherwise." 64.. In Mahant Dharam Das [1975] 3 SCR 160, it has been held that the object of the Act is to get rid of protracted litigation. The same is also required to be borne in mind while interpreting the relevant provisions of the Central and the State Acts. 65.. There cannot be any doubt or dispute that while defining sale, the situs of sale can be fixed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovering it. The expression does not extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made." 71.. The expression "for the purpose of the said Act" must also be given effect to. The same would ordinarily mean "for the purpose of all the provisions of the said Act". 72.. In M.A. Kochu Devassy v. State of Kerala (1979) 2 SCC 117, it is stated: "13. We find ourselves wholly unable to accept any of the contentions. The terms of section 2 of the 1947 Act as substituted by section 3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that the expression 'public servant' shall have a particular meaning for the purposes of the Act, that meaning must be given to the expression wherever it occurs in the Act, 'for the purposes of the Act' surely means for the purposes of all and not only some of the provisions of the Act. If the intention was to limit the applicability of the definition of the expression 'public servant' as contended, the language used would not have been 'for the purposes of the Act' but something like 'for the purposes of the Act insofar as they relate to the offences unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression 'order' must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand AIR 1963 SC 677, 680. [Constitution of India Art. 136]." 77.. In Black's Law Dictionary, 6th Edition, it is stated: "A 'determination' is a 'final judgment' for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken 90 Wis. 236, 279 N.W. 2d 459, 463." 78.. It is not in dispute that the principles for determination as to what would cause an inter-State sale or intra-State sale is to be laid down in terms of the provisions of a Parliamentary Act having regard to the express provisions contained in clause (3) of article 269 and clause (3) of article 286 of the Constitution. What principles can be deduced by reason of such a legal fiction has been stated by this Court in Consolidated Coffee Ltd. (1980) 2 SCC 358 in the following terms: "A 'principle' means a general guiding rule, and does not include specific directions, which vary according to the subject-matter [per Shearman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment can be directed and not if there had been a mere error of judgment. 81.. If it is not an inter-State sale provided through a legal fiction, then it amounts to transfer of stock and this is a finding which has been arrived at by a statutory authority wherefor there does not exist any provision for appeal. Therefore, it cannot be reopened on the premise that there was a mere error of judgment or change in opinion. 82.. Once it is held that such determination of an issue having regard to legal fiction created in terms of sub-section (2) of section 6-A is conclusive, it must a fortiorari follow that the same is binding. 83.. The particulars required to be furnished in form F clearly manifest that the proof required is as to whether the goods were factually transferred to the assessee himself or his branch office or his agent and not to any third party. Any other enquiry is beyond the realm of the assessing authority. 84.. It is true that this Court in Ashok Leyland (1997) 9 SCC 10 upon consideration of the matter holding that no statutory conclusiveness had been attached by reason of a legal fiction in terms of sub-section (2) of section 6-A. This Court opined: "After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed." 89.. In Sahney Steel (1984) 4 SCC 172 whereup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, are of the opinion that the observations made by this Court in Ashok Leyland* (1997) 9 SCC 10, to the effect that an order passed under sub-section (2) of section 6-A can be subject-matter of reopening of a proceeding under section 16 of the State Act was not correct. 93.. However, we may hasten to add that the same would not mean that even wherein such an order has been obtained by commission of fraud, collusion, misrepresentation or suppression of material facts or giving or furnishing false particulars, the order being vitiated in law would not come within the purview of the aforementioned principle. 94.. An order of assessment is albeit passed under the State Act. But once it is held that the concerned State Act as also the Central Act is not applicable, as a consequence whereof sales tax would be payable under another State Act, it is doubtful as to whether the power to reopen the proceedings under the State Act or the Central Act would be attracted. There does not exist any power in the statute to rectify a mistake. In that view of the matter, mere change in the opinion of the assessing authority or to have a relook at the matter would not confer any jurisdiction upon h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was false. In a leading English case [Derry v. Peek (1886-90) All ER 1] what constitutes fraud was described thus: (ARR ER P.22 B-C): '......Fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false'." 96.. This aspect of the matter has been considered recently by this Court in Roshan Deen v. Preeti Lal AIR 2002 SC 33. Smt. Anita v. R. Rambilas AIR 2003 AP 32. Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003) 8 SCC 311 and Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319. 97.. Suppression of a material document would also amount to a fraud on the court. [See Gowrishankar v. Joshi Amba Shankar Family Trust (1996) 3 SCC 310 and S.P. Chengalvaraya Naidu (Dead) By Lrs. v. Jagannath (Dead) by Lrs. (1994) 1 SCC 1]. 98.. There is no law that only because no appeal is provided the order would not attain finality. (See Commissioner of Income-tax, Bombay v. Amritlal Bhogilal & Co. [1959] SCR 713). RES JUDICATA: The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chief Justice or the High Court to put in appearance on their behalf, the counsel did not pursue this contention further. Moreover, this is a pure question of law depending upon the interpretation of article 371-D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in the case." 100.. In Dwarka Prasad Agarwal (D) by Lrs. v. B.D. Agarwal (2003) 6 SCC 230, it is stated: "It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by playing fraud or suppression of record or not requires a detailed examination. Indisputably, the appellant/writ petitioner would be entitled to move the High Court in accordance with law. CIVIL APPEAL at S.L.P. (C) NO. 5579 OF 2001. The appellant herein had filed his application praying, inter alia, for the following reliefs: "(a) Grant Special Leave to appeal against the final judgment and order dated November 13, 2000 passed in S.T.A. No. 459 of 1999 by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai. (b) Pass such other or further order or orders as this honourable Court may deem fit and proper in the facts and circumstances of the present case and in the interest of justice." 104.. In the said case, no order of reopening has been issued and as such it is not a case where we were required to determine a forum in the light of the order passed in Ashok Leyland (1997) 9 SCC 10. C.A. No. 944 of 2001: The question as to whether the transaction in question constitutes inter-State sale or intra-State sale has been decided up to Tribunal. They have approached this Court without availing the statutory remedies provided for under the statutes. We, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mil Nadu had no jurisdiction to impose tax in respect thereof. The Tribunal also accepted the declaration made in terms of section 6-A. The State of Tamil Nadu being aggrieved and dissatisfied therewith filed tax revision case and by reason of the impugned judgment dated December 2, 1997 the judgment of the Tribunal was reversed. It, however, did not interfere with the order of the Tribunal as regard penalty. Questioning the said order, the appeal has been filed before us. Keeping in view the fact that although more than one State is involved, having regard to the facts and circumstances of the case, it is necessary that the question may be examined afresh by the High Court in the light of the decision of this Court. In the writ petition, it will be open to the parties to implead the other States so that, if necessary, the matter may be heard out and disposed of in their presence. However, in the event another forum is created by a Parliamentary Act, it will be open to the parties to approach the said forum. These appeals and writ petitions are disposed of with the aforementioned directions and observations. No costs.
Appeals and writ petitions disposed of accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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