TMI Blog1990 (12) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, 1989, stating that the assessment be reopened to admit C forms which were not filed due to "sufficient cause" and consider also that it had incurred huge loss due to dislocation of business, etc. It is stated in the affidavit filed in support of the petition: "Besides, the difficulty in collecting C forms from various out of State buyers was expressed. It was submitted that the failure to present C declaration was due to reasons beyond the control of the petitioner. The petitioner also enclosed correspondence with the out of State buyers to show nonavailability of C forms even with the out of State buyers. Simultaneously, copy of the assessment order dated May 16, 1989, allegedly passed for the 1987-88 (Central sales tax) was prayed for." However, when the said petition was presented, the respondent replied by R.C. No. 11242/87-88 dated December 25, 1989, thus: "With reference to your letter second cited, I am to inform that the pre-assessment notice dated March 27, 1989 and the assessment orders in C.S.T. No. 11242/87-88 dated May 16, 1989, were duly served to the appropriate person of your concern by the staff of this office on April 7, 1989 and June 10, 1989, respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he certificate in form E-I or form E-II, shall be furnished to the prescribed authority up to the time of assessment by the first assessing authority: Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit." 4.. It can straightaway be seen that rule 12(7) of the Rules has laid down a test different from the proviso to section 8(4). This evidently is a glaring example of indifferent drafting of a rule under a taxation statute. However, I am not required to make any further comments about it for a Full Bench of this Court in State of Tamil Nadu v. Arulmurugan and Company [1982] 51 STC 381, has gone into this aspect and stated: "We would proceed now to advert to the different ways in which the discretion to allow further time for filing C forms is conferred by the proviso to section 8(4) of the Act, on the one hand, and the proviso to rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, on the other. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e structure of the proviso to section 8(4) shows how Parliament's peculiar preferences had worked in this regard. While Parliament was content to leave to the rule-making authority, namely, the Central Government, the task of prescribing a rule laying down the time-limit for furnishing C forms, the power to allow further time, however, was not relegated to the Rules, but deliberately enacted into the very text of the provisos to section 8(4). In this statutory format, with Parliament clearly expressing its mind on the subject, the Central Government must be held to possess no authority whatever to make any rule as respects the power to allow further time, let alone prescribe the conditions subject to which any such power could be exercised. In this sense, the proviso to rule 12(7) must be held to be ultra vires the rule-making power, to the extent that it is inconsistent with, or lays down tests or standards different from, the proviso to section 8(4). It is quite clear that the proviso to rule 12(7) is both superfluous and badly drafted. The indifferent drafting is all the more regrettable when we remember the legislative history which brought into the statute book the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench decision that the assessing authority has the statutory power of rectification of mistakes and other observations about these provisions are obiter dicta, and, if accepted, as a doctrine of implied or ancillary powers, would mean recognising in a statutory authority a power to review a final assessment order, which power shall always operate as a weapon to undo any assessment order. I would have given some thought to this objection as it is well-settled that no statutory authority or Tribunal can have the power to review its order unless such power is conferred by a statute, but I am, however, not required to examine in this case, the extent of the ancillary powers that may be availed to the assessing authority. Section 8(4) itself has recognised the power of the assessing authority to permit filing of the declarations and forms referred to in clause (a) thereof, within such further time as that authority may, for sufficient cause, permit. I have already noted that rule 12(7) has prescribed the time-limit for filing the declaration referred to in clause (a) of section 8(4) of the Act and that the assessee can file the declaration referred to in clause (a) of section 8(4) or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
