TMI Blog1973 (4) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... ional rate by furnishing declaration in the prescribed form. The assessee having sold the goods to the thermal power station claimed that the amount of Rs. 20,66,275 was taxable at the concessional rate of 1 per cent and not at the usual rate of sales tax. The prescribed authority for the purpose of assessment under section 6A(3) of the Act, as prescribed by rule 12 of the Bihar Sales Tax Rules, 1959 (hereinafter called the Rules), is the Assistant Commissioner, the Superintendent and the Assistant Superintendent of Commercial Taxes. Under section 6A(2) of the Act a declaration in the prescribed form duly filled up and signed by the assessee had to be furnished in the prescribed manner by the selling dealer, i.e., the assessee, and the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and assessed the sales tax payable on the amount of Rs. 20 lacs and odd at the general rate and not at the concessional rate. 2.. The assessee thereafter preferred an appeal before the Deputy Commissioner of Commercial Taxes. Shortly after the filing of the appeal, it seems, the assessee filed the correct declaration in the correct form IX, which was obtained on 22nd April, 1965, a copy of which is included in this paper book. The appeal was heard by the Additional Deputy Commissioner and he thought that he could not accept the declaration in form IX at the appellate stage, the two declarations were contradictory and he, therefore, could not give relief to the assessee by ordering assessment at the concessional rate. 3.. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be reframed as follows: "(1) Whether the assessee could claim to be taxed at the concessional rate without complying with the provisions of section 6A(2) of the Act? (2) Whether the Additional Deputy Commissioner, on the facts and in the circumstances of this case, could set aside the assessment in exercise of his power under section 30(5)(a)(ii) of the Act and direct the assessing authority which made the assessment to pass a fresh order after further enquiry? If so, whether the Tribunal, in exercise of its revisional power, can give the same relief to the assessee under section 31 of the Act?" 6.. Without going to the intricacies of the question whether the provision contained in section 6A(2) of the Act is directory or mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficulty in answering the second question in favour of the assessee. In Basta Colla Colliery Co. (P.) Ltd. v. The State of Bihar[1969] 23 S.T.C. 142 at 149., a Bench of this Court, of which I was a member, dealing with a similar situation under the Central Sales Tax Act, 1956, said: "If, however, the assessee is not able, for sufficient cause, to furnish the requisite declarations and the certificates in forms C and D before the passing of the assessment order before the assessing authority, he may prefer an appeal to the appellate authority which exercising the powers under section 30(5) of the Bihar Act (19 of 1959), will be competent to set aside the assessment and direct the assessing authority which made the assessment to pass a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a question of fact. It has been held in numerous decisions including a recent one by the Supreme Court that what is sufficient cause is a question of fact." Section 30(5)(a)(ii) of the Act reads as follows: "(5) Subject to such rules as may be made by the State Government under this Act, the appellate authority in disposing of an appeal, may- (a) in the case of an appeal other than an appeal against an order under section 20A or section 21 ...... (ii) set aside the assessment or penalty or both, and direct the authority which made the assessment or imposed the penalty to pass a fresh order after further enquiry, on specified points." The appellate authority has, therefore, been given power to direct the assessing authority to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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