TMI Blog2009 (6) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... livered by FERDINO I. REBELLO J. Rule. Heard forthwith. The question for determination in this petition is, what is the date for an application for registration as dealer under rule 7(1)(ai) of the Bombay Sales Tax Rules, 1959, where a company court passes an order of amalgamation? A few facts may be set out: The petitioner is a public company incorporated under the Companies Act, 1956 and its head office is at New Delhi and the branch office is at Bandara (East), Mumbai. The petitioner was not having any business activity in the State of Maharashtra till March 31, 2002 and hence it was not registered under the Bombay Sales Tax Act, 1959 (hereinafter referred as, the BST Act ) and under the Central Sales Tax Act, 1956 (hereinafter referred to as, the CST Act ) in Maharashtra. M/s. Floatglass India Limited was another company incorporated under the Companies Act and had its office at Bandra (East) Mumbai and business activities in Maharashtra and was registered under the BST and CST Acts. The petitioner and M/s. Floatglass India Limited (amalgamating company) entered into scheme of amalgamation and according to the scheme of amalgamation Floatglass India Limited was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the sales transaction effected earlier gets converted into branch transfers. This legal position according to the petitioner, is established by the judgment of the Supreme Court in the case of Marshall Sons and Co. (India) Ltd. v. Income-tax Officer [1997] 223 ITR 809. Once the transaction becomes branch transaction, the transferor-branch has to receive F form declarations under the CST Act, 1956 from the transferee-branch. If transferor-branch fails to receive the same, as per section 6A of the CST Act, such transfers will be treated as sale transactions in hands of transferor and the tax can be levied on the same accordingly. It is not necessary to set out various other disabilities incurred. It is submitted on behalf of the petitioners that the petitioners could not have applied for the registration until the court sanctioned the scheme of amalgamation. Though in the scheme of amalgamation, the date of amalgamation may be set out, it is for the court ultimately to decide the date of amalgamation. In these circumstances, an application for registration can only be made after an order sanctioning the scheme of amalgamation. Like in the instant case, if the company court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) within sixty days thereof apply for registration: Provided that, where such person resells any goods purchased by the dealer while carrying on business before such succession, he shall be entitled to such deductions in respect thereof as are permissible under sections 7, 8 and 9 as the case may be, had the resale been effected by the dealer himself. The following BST Rules are relevant: 7.. Application for registration of dealers liable to tax under the Act. (1) In the case of a dealer who becomes liable to pay tax under section 3, an application for registration under section 22 shall be made, (a) within ten days from the appointed day if his turnover either of all sales or of all purchases during the year ending on March 31, 1959, or during the year commencing on April 1, 1959 has exceeded the relevant limit specified in sub-section (4) of section 3 before the appointed day, and (ai) within 60 days from the date of succession to the business as provided in sub-section (6) of section 19; and (b) in any other case, within 30 days from the day on which his turnover either of all sales or of all purchases during the year commencing on the 1st April , 1959 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dealer became liable to pay tax under the said sub-section; and (iv) if it was made by or before the dates notified under sub-rule (1) of rule 7A, it shall take effect from such date as may be notified for the purpose of sub-section (5) of section 22A. (b) if such application was made after the expiry of the aforesaid period, it shall take effect from the date on which the application was made. On behalf of the respondents, the learned counsel had also sought to place reliance on section 33C of the Act. In our opinion, reliance placed in the said section for the purpose of considering the issue in question is wholly irrelevant. Under section 33C when two or more companies are to be amalgamated by the order of a court or of the Central Government and the order is to take effect from a date anterior to the date of the said order and any two or more of such companies have sold or purchased any goods to or from each other during the period commencing on the date from which the order is to take effect and ending on the date of the order, then notwithstanding anything contained in the said amalgamation order, such transactions of sale and purchase shall be included in the tur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust bear in mind that the wisdom or lack of wisdom in the action of the Government or Legislature is not justiciable by court. The Supreme Court quoted with approval the observations of Mr. Justice Kc Kenna in Metropolis Theatre Co. v. City of Chicago and Ernest J. Magerstadt [1912] 57 Led. 730 as under: It may seem unjust and oppressive, yet be free from judicial interference. The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void ... Next reliance was placed in the judgment in Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96. The Supreme Court observed as under: ... The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the Legislature the court could not go to its aid to correct or make up the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rule 7. Similarly rule 8(3)(a)(ii) refers to an application under clause (b) of sub-rule (1) of rule 7. In so far as rule 8(3)(a)(i) and (ii) is concerned, it only takes note of applications made under rule 7(1)(a) and rule 7(1)(b). No rule for grant of certificate of registration is made in so far as rule 7(1)(ai) is concerned. Rule 7(1)(ai) was introduced by an amendment and it appears that the delegate has made no provisions to cover that eventuality under rule 8(3). Rule 8(3)(a)(iii) and (iv) will also not be applicable. Thus though section 19(6) and rule 7(1)(ai) provide for the date of succession, they do not cover the eventualities of transfer of business under a scheme of amalgamation. It is in these circumstances that this court must consider the date for the purpose of moving an application and the starting point of limitation under rule 7(1)(ai). As earlier noted, in so far as amalgamating company Floatglass India Limited, is concerned, considering the provisions, its certificate of registration was cancelled from April 1, 2002. In other words, M/s. Floatglass India Limited ceases to be company from that date and that must be the date to give effect to section 19( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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