TMI Blog2013 (4) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... uineness or correctness of the form issued by its branches situate outside the State of U.P., who had obtained the form F from their registering authority is not an issue. After all form F is a document to prove that the goods were not moved in pursuance of contract of sale from one State to another. There is no dispute that the forms were not issued by the branches of the petitioner. It is a different thing to say that the factum of existence of branches were not disclosed in the registration application. The law does not provide that in such matters, the contention of dealer with regard to the stock transfer is liable to be rejected. In this facs situation, we fail to understand as to how it can be said that the turnover of the petitioner has escaped the assessment within the meaning of section 21 of the U.P. Trade Tax Act. petitioner is right in his submission that the impugned order granting sanction to reopen the assessment is no order in the eyes of law. The impugned order is bad and cannot be allowed to stand. The writ petition succeeds and is allowed. - Writ Tax No.-744 of 2004, Writ Tax No.-745 of 2004, Writ Tax No.-746 of 2004 - - - Dated:- 15-4-2013 - Prakash Krishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ock transfer was wrongly allowed in the assessment order and therefore, the petitioner is liable to pay Central Sales Tax at the rate of 10 per cent. The petitioner filed objections to the aforesaid proposal of the Assessing Authority. The respondent no.2 by the order dated 30th of April, 2004 has granted the sanction to the Assessing Officer permitting him to reopen the assessment for the relevant Assessment Orders. Challenging the said order dated 30th April, 2004, and the consequently notice issued on 22nd of May, 2004 by the Assessing Authority, these three petitions have been filed. The respondents in their counter affidavit have justified the sanction order although they have not disputed the material facts as set out in the writ petition. The defence set out in the counter affidavit is that the petitioner has not disclosed its branches outside the State of U.P. as has been provided in the Rule-3 of Central Sales Tax Registration and Turnover Rules, 1957. Hence, any such transfer made to undisclosed branches cannot be accepted, as stock transfer, instead it is interstate sale. Heard Sri S.D. Singh, learned counsel for the petitioner and Sri C.B. Tripathi, learned Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds shall be deemed for all purposes of this section, to have been an occasion as a result of sale." Sri Tripathi maintains that the law as stood prior to the aforesaid amendment shall apply to the present case, therefore, the law laid down by the Apex Court in the earlier case of Ashoka Leyland Limited Vs. Union of India, (1997) 9 SCC 10 would be applicable. The petitioner submitted that the earlier judgment of Ashoka Leyland Limited has not been approved in the subsequent judgment of Ashoka Leyland Limited by the Apex Court. The ratio laid down in the first of Ashoka Leyland Limited is that there are no words in section 6-A which can be said to create a conclusive presumption or clothe, "the deemed fact with a conclusive character". It has been held that the presumption available under section 6-A is rebuttable presumption. The said ratio has not been approved in the subsequent judgment of the Apex Court. Paragraph-56 of the earlier judgment is reproduced below:- "We find it difficult to agree with Sri Parasaran that Section 6-A creates a conclusive presumption. It is true that if the particulars stated in the declaration/Form `F' are found to be true, the assessing authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment is subject to the power of reopening or revision, it is un-understandable as to how an order under Section 6- A(2) is not similarly amenable. The power to reopen can exercise under Section 16 of the Tamil Nadu General Sales Tax Act "where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax". The power is very wide, though it may be that it should not be mechanically or lightly exercised. Sri Parasaran has relied upon certain decisions in support of his contention. The first decision relied upon is in Izhar Ahmad Khan v. Union of India [1962 Suppl.(3) S.C.R. 235], which dealt inter alia with Section 9 of the Citizenship Act, 1955. Sub-section (1) of Section 9 provides that if any citizen of India voluntarily acquires citizenship of another country, he shall cease to be a citizen of India with effect from the date of such acquisition. Sub-section (2) says that if any question arises as to whether, when or how any person has acquired citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence as may be prescribed in that behalf. Rule 30 of the Rules f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee 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. 106. It is true that this Court in Ashok Leyland (supra) 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 6A. This Court opined: "After all Section 6A is also one of the provisions of this Act. There is no reason to elevate it to a higher status than the rest of the provisions" 107. With utmost respect, therein the Court did not take into consideration that the provisions of Section 6A having been provided by way of exclusionary clause subject to the satisfaction of the conditions precedent contained therein, and, thus, the same stand at an elevated stage over charging Section 6 of the Act. The assessing authority while passing an order is required to take into consideration the jurisdictional fact. Once it is found, having been conferred with a plenary power to determine its own jurisdiction, that he did not have any jurisdiction under the Act, the opinion of the assessing authority attains finality. What would be a jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation form could be treated as non disclosure of material facts or not or is a fraudulent act. Section 7 of the Central Sales Tax Act provides for registration of dealers. Every dealer liable to pay tax under the Central Sales Tax Act is required to obtain registration by filing application in the prescribed form. Form -A is the prescribed form. Its column-6 requires furnishing of list of places of business in each other States together with the address of every such place etc.. The registration was granted. It may happen that by passage of time, a dealer may open new branches or close existing branches or a branch which shifted from one place to another. What would be the consequences for not updating the information to the registering authority. Sub-sections (4) and (5) of section 7 of the Central Sales Tax Act are the provisions for cancellation and amendment of the registration certificate. They provide that a registration can be cancelled either on the application of the dealer to whom it has been granted or where no such application has been made, after due notice to the dealer, be amended by the authority granting it if he is satisfied that by reason of the registered deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny substance. In such matters, the Assessing Authority should have exercised its suo moto power to amend the registration certificate to bring in conformity with the facts as they exist and recourse to section 21(2) of the U.P. Trade Tax Act is not warranted under law. We find that the case of the respondents lacks any allegation of fraud against the petitioner. The genuineness or correctness of the form issued by its branches situate outside the State of U.P., who had obtained the form F from their registering authority is not an issue. After all form F is a document to prove that the goods were not moved in pursuance of contract of sale from one State to another. There is no dispute that the forms were not issued by the branches of the petitioner. It is a different thing to say that the factum of existence of branches were not disclosed in the registration application. The law does not provide that in such matters, the contention of dealer with regard to the stock transfer is liable to be rejected. As laid down by the Apex Court in the second case of Ashoka Leyland Limited (supra), by filing the form F an irrebutable presumption that the goods were moved from one State to anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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