TMI Blog1997 (6) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the State using C forms. It had also used in the regular course of business the delivery notes in form No. 26 issued by the assessing authority. On November 15, 1992 the petitionercompany submitted an application to the first respondent requesting to issue one C form book and one new delivery note book as per exhibit P3. However, the first respondent directed the petitioner to produce the particulars regarding the taxable purchases and sales for the assessment years 1991-92 and 1992-93. Those particulars were produced before the first respondent by the petitioner as per exhibits P4 and P5. In spite of the production of particulars as above request for the issue of C forms and delivery notes was not considered by the first respondent. When the petitioner s representative met the first respondent soliciting his early action in that regard he openly told him on December 16, 1993 that C forms and delivery notes would not be issued to the petitioner-company for the reason that the company was also engaged in the execution of works contract. In the aforesaid background the petitioner filed this writ petition praying, inter alia, for a direction to the first respondent to issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State under entry 54 of List II and of the Parliament under entry 92A of List I. Thus the expression tax on the sale or purchase of goods in entry 54 includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract also. But at the same time the tax leviable by virtue of sub-clause (b) of clause (29-A) of article 366 of the Constitution thus becomes subject to the same discipline to which any levy under entry 54 of the State List is made subject to under the Constitution as observed by the Supreme Court in Builders Association of India v. Union of India [1989] 73 STC 370; (1989) 2 SCC 645. 6.. In view of the above Constitution amendment the Kerala Legislature has introduced certain amendments in the Kerala General Sales Tax Act, 1963 as per the provisions contained in the Kerala Finance Act, 1984. Explanation (3A) which was introduced in the definition clause of the expression sale [section 2(xxi)] is as follows: Explanation (3A).-A transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract shall be deemed to be a sale. The definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery notes by themselves and use the same for the purposes aforesaid. This is evident from the provisions contained in different sub-rules of rule 33A which deal with safe custody and procedure on loss, etc., of delivery note. The duties and responsibilities of a dealer are specified in rule 33A, when the delivery note is issued to him by an assessing authority. Therefore it can safely be said that it is the duty of the assessing authority to issue delivery notes in book form or in any other manner when the dealer makes a demand in that behalf. 8.. Next point for consideration is whether a contractor who is a dealer under the provisions of the Kerala General Sales Tax Act is entitled to receive the C forms prescribed under the Central Sales Tax Act and Rules. Under subsection (1) of section 8 every dealer who in the course of inter-State trade and commerce sells to a registered dealer other than the Government, goods of the description referred to in sub-section (3) shall be liable to pay the Central sales tax at the rate of 4 per cent of his turnover. Sub-section (4) prescribes that the above sub-section (1) shall not apply to any sale in the course of inter-State trade or commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution but it is not an absolute or unqualified right. No doubt the State has power to impose reasonable restrictions on the enjoyment of such rights in the interest of the general public. But the issue of delivery notes and C forms is not in any way intended to restrict the trade or business; on the other hand they are intended to regulate the conduct of the trade and business. Withholding of these documents may some times result in the complete destruction of trade or business in which event it may amount to total restriction which is impermissible under the law. Of course misuse of C forms is punishable under section 10 of the Central Sales Tax Act. The assessing authority can refrain from issuing delivery notes until the dealer has rendered account of the old delivery notes already issued to him under rule 33A of the Kerala General Sales Tax Rules. Thus issue of delivery notes and C forms by the prescribed authorities and their use and preservation by the dealers are controlled by the provisions in the relevant enactments and rules framed thereunder. 10.. The non-payment of tax for any year is not a ground for withholding or not issuing the delivery notes and C forms u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act, 1958, or that he was in arrears of tax under the said State Act. [Dawar Brothers v. State of Madhya Pradesh [1979] 44 STC 286 (MP)]. While considering a claim for issue of declaration forms under rule 27AA of the Bengal Sales Tax Rules, 1941, the Division Bench of the Calcutta High Court observed in Ram Lawat Shaw v. Commercial Tax Officer [1987] 66 STC 235; [1987] 20 STA 205 observed: Admittedly, the respondent No. 1 had power to withhold the issue of declaration forms only under rule 27AA(2)(c). He could withhold the issue of the declaration forms only on the ground that the appellant had defaulted in furnishing any return with receipted challans showing the payment of tax due from him according to such return or returns, for the furnishing of which the dates had expired. If the respondent No. 1 came to the conclusion that the appellant had not made bona fide use of the declaration forms previously issued to him then the respondent No. 1 could have rejected the application which he has not done. Under the statutory provisions, the respondent No. 1 was not entitled, while issuing declaration forms to call upon the appellant to rectify his returns and pay addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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