TMI Blog1988 (7) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... er of assessment made under the Act. The question raised by the petitioner in these cases centres round the controversy regarding the acceptance of form 32 produced by the petitioner before the assessing authority. The learned counsel for the petitioner has urged that this question may be decided by this Court, without directing the petitioners to file appeals again before the Deputy Commissioner (Appeals), in view of the interpretation placed by the Deputy Commissioner about the burden of proof under the Act. The Government Pleader was directed to take notice regarding rule in all these cases and the writ petitions are disposed of on merits and after issuing rule. The controversy relates to the non-acceptance of the declarations in form 32 produced by the petitioner before the assessing authority. The Deputy Commissioner (Appeals) remanded the cases to the assessing authority twice. In the second round of appeals, which were disposed of on 13th December, 1984, the Deputy Commissioner set aside the assessments and remanded the cases to the assessing authority with the following direction: "It is seen from the detailed scrutiny of the assessment records that the assessing author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods in question are steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes) which is exigible to tax under entry 2(a)(ii) of the Fourth Schedule at single point. The point of levy is on the sale by the first or earliest of successive dealers in the State liable to tax under the Act. The petitioner-assessee claimed exemption on the turnover relating to the purchase of the ingots which are the raw material used by the petitioner in re-rolling of ingots into bars, flats, etc. This exemption was claimed under explanation II of the Fourth Schedule which entitles the dealer to claim exemption on the sale of the manufactured articles provided the dealer claiming exemption of tax under the said explanation furnishes before the assessing authority proof of levy and payment of tax. The periods of assessments in these cases being the years ending 30th June, 1973 to 30th June, 1978 the explanation applicable to the present cases up to 31st March, 1978 is reproduced: "Explanation II.-Where tax has been paid in respect of the sale or purchase of (i) iron scrap, cast iron scrap, runner scrap and iron skull scrap referred to in entry (i) of serial number 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 32 obtained from the selling dealers. It should be noted that in respect of some purchases the selling dealers are second sellers and in some cases they are first sellers. After a scrutiny of the declarations in form 32 furnished by the selling dealers, the assessing authority further insisted on the production of proof of levy and payment of tax by the previous selling dealers from whom the assessee had effected purchases. The other ground on which the assessing authority declined to grant exemption was that the declarations obtained from the second sellers filed by the petitioner before him, did not contain the particulars, such as names and address and R.C. number of their selling dealers, and the column relating to tax payment was left blank. Regarding the first reason given by the assessing authority he relied upon the explanation II of the Fourth Schedule besides the order of the Deputy Commissioner (Appeals) remanding the cases for redoing the assessments. It is urged by Sri Srinivasan, the learned counsel for the petitioner, that having regard to the law laid down by this Court as to the interpretation of the provisions of section 6A relating to burden of proof, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Under section 6A a dealer in any of the goods liable to tax under the Act in respect of the first sale or first purchase in the State shall be deemed to be the first seller or first purchaser, as the case may be, of such goods and shall be liable to pay tax accordingly on his turnover of sales or purchases unless he proves that the sale or purchase as the case may be, of such goods had already been subjected to tax under this Act. The meaning and effect of this phrase (underlined*) was explained by this Court in Sha Pannalal's case [1975] 35 STC 109 and in two Division Bench decisions reported in [1985] 58 STC 81 and the other at page 343 [S. Narayana Setty v. State of Karnataka [1985] 58 STC 81 (Kar) and Srinivasa Traders v. Commercial Tax Officer, Chintamani Circle [1985] 58 STC 343 (Kar)]. This Court has held in Sha Pannalal's case [1975] 35 STC 109 by E.S. Venkataramiah, J. (as he then was), in the following words: "It is no doubt true that ordinarily the burden of establishing the liability under a fiscal statute is on the Revenue. It is however open to the legislature in appropriate cases, in order to avoid evasion of the tax, to place the burden on the assessee him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in form 32 obtained from the registered dealer who sold the goods to him and for this purpose, the seller of such goods shall issue the declaration to the buying dealer. (b) Every dealer in goods taxable at the point of last purchase or last sale in the State, shall, where he is not the last purchaser or last *Here italicised. seller of such goods, furnish to the assessing authority, a declaration in form 32 obtained from the registered dealer to whom he sold the goods in question and the buyer of such goods shall issue the declaration to the selling dealer. (c) Every declaration in form 32 issued under clause (a) or clause (b) shall be serially machine numbered for each year and an account in respect of such declaration issued shall be maintained by the dealer in a register in form 32-A." On the facts of the said case, it was observed that the assessee had produced form 32 issued by the dealers registered under the Act and the Division Bench further observed at page 84 thus: "It is also equally well-established that the assessee need not prove that his seller has, in fact, paid the tax as the first seller." Their Lordships referred to and applied the observations made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier seller in order that the assessing authority may verify whether the goods in question have suffered tax either in the hands of the first seller or the second seller. On a perusal of the contents of form 32, it is seen that what is required to be produced is the declaration furnished by a dealer that he is liable to tax under the Karnataka Sales Tax Act and shall pay tax in respect of sale or purchase. The other requirement is, when he is not a seller or purchaser liable to tax, he should give the name and address of the dealers who are liable to tax, along with the sale bill, etc. This is the requirement as laid down by section 6A and rule 26(9). In this context, it would be useful to read again rule 26(9). The requirement of rule 26(9) is that the dealer who claims exemption must produce declaration in form 32 and that declaration should be obtained from the registered dealer who sold the goods to him, and the object of filing such a declaration is undoubtedly to enable the assessing authority to satisfy himself whether the goods purchased by the dealer has suffered tax. For this purpose the particulars of the selling dealer, place of business, the place where he i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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