TMI Blog2010 (7) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... h would become the admitted tax and interest under section 8(1) of the Act would be leviable from the due date of the return in which turnover was disclosed and exemption/concession has been claimed and tax at the normal rate has not been paid. The provisions of section 8(1B) of the Act would not be applicable. Non-furnishing of requisite form by the time of assessment proceedings or in appellate proceedings, the tax assessed at the normal rate would be treated as the tax admittedly payable under section 8(1) of the Act. There is no scope for consideration of legitimate expectation or hope or bonafide plea under section 8(1) of the Act and the stage of determination of liability of tax for the purposes of section 8(1) would be the date for filing the return. - - - - - Dated:- 14-7-2010 - AGRAWAL R.K. AND RAKESH SHAARM , JJ. The judgment of the court was delivered by R.K. AGRAWAL J. A learned single judge while considering the question relating to charge of interest was of the view that there are different views of learned single judges of this court on this issue and, therefore, the matter requires consideration by the Full Bench of this court in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on which concession/full exemption was claimed, the dealer could not file form IIIB on account of which the assessing authority disallowed the exemption claimed and levied tax at the normal rate applicable to sale of such goods. The assessing authority treated the tax assessed as the tax admittedly payable along with the return and levied interest under section 8(1) of the Act at two per cent per month from the date of filing of the return till the date of its deposit. The levy of tax has been confirmed up to the stage of Tribunal. However, the Tribunal deleted the levy of interest under section 8(1) of the Act. Feeling aggrieved, the Commissioner of Trade Tax preferred a revision under section 11(1) of the Act before this court. The learned single judge while hearing the matter after noticing the various provisions of the Act and the Rules and also the case laws cited at the Bar came to the conclusion that there is a divergence of opinion in cases decided by various learned single judges of this court on the issue and, therefore, formulated the aforementioned questions to be decided by a Larger Bench in the light of the various decisions of the apex court and the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by him in his return, or disclosed in his account books, whichever is greater, for the immediately preceding year, calculate the amount of tax payable thereon and deposit a sum equal to one twelfth thereof during each of the first two months of every quarter, and deposit the balance of tax due on the turnover admitted by him in his return for the relevant quarter, which shall be prepared and submitted in the manner laid down in this rule. (2) Every dealer liable to pay tax under the Act, other than the dealer referred to in sub-rule (1), shall submit to the Sales Tax Officer for the quarter ending June 30, September 30, December 31 and March 31, within a month of the expiry of the quarter concerned, a return of his turnover in form IV giving detailed information in respect of each category of goods in which he carries on business: Provided that it shall not be necessary for such dealer to furnish in annexures I and II detailed information according to code numbers in respect of goods in which business was carried on by him: Provided further that a dealer whose total admitted tax liability during the assessment year immediately preceding did not exceed Rs. 500 and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3D and 3G of the Act. Under the aforesaid provisions, forms are required to be furnished before the assessing authority up to the time prescribed in sub-rule (7) of rule 41 of the Rules, i.e., up to the time of the assessment proceedings. Section 8(1) of the Act read as follows: Section 8. Payment and recovery of tax. (1) The tax admittedly payable shall be deposited within the time prescribed or by the thirtyfirst day of August, 1975, whichever is later, failing which simple interest at the rate of two per cent per mensem shall become due and be payable on the unpaid amount with effect from the day immediately following the last date prescribed till the date of payment of such amount and nothing contained in section 7 shall prevent or have the effect of postponing the liability to pay such interest. Explanation. For the purpose of this sub-section, the tax admittedly payable means the tax which is payable under this Act on the turnover of sales or, as the case may be, the turnover of purchases, or of both, as disclosed in the accounts maintained by the dealer, or admitted by him in any return or proceeding under this Act, whichever is greater, or if no accounts were main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error in determining the tax payable to be nil under section 8(1). Therefore, its failure to file form could result in the enhancement of 'tax in excess' but the assessing authority could not while assessing tax create any demand for interest. Reliance was placed on Commissioner of Sales Tax v. Venus Auto Traders [1980] UPTC 273. None of the submissions for have any merit in it. We have already indicated above that liability to pay interest under sub-section (1) of section 8 is not affected by the deposit of tax assessed within the time specified. The only question, therefore, is whether the calculation of tax payable was in accordance with the Act. It is not disputed that if the petitioner effected sales to a person other than a registered dealer then it was liable to pay tax under subsection (2) of section 3D. The liability to pay tax, therefore, depended on this crucial fact which is required to be proved by filing form IIIC(1) under sub-rules (6) and (7) of rule 12B. It is admitted that these forms were not filed. In the absence of these forms it cannot be said that the calculation of tax payable was in accordance with the Act. In the case of Ram Sahai Dal Mills, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable means the tax which is payable, inter alia, according to the return filed by the dealer. In the case of Commissioner of Trade Tax, U.P., Lucknow v. Deepak Hume Pipe Manufacturing Company [2006] 29 NTN 104, a learned single judge of this court held that the burden lay upon the dealer to file requisite form for the claim of exemption or concessional rate of tax, failing which normal rate of tax is payable. It is held that in case, if requisite form is not filed, the normal rate of tax is due and payable and for the non-payment of such tax, the interest under section 8(1) of the Act is chargeable. Similar view has been taken by the learned single judge of this court in the case of Commissioner of Trade Tax, U.P. Lucknow v. Jobex India [2005] 28 NTN 175. Section 8(1) of the Act has been examined by the apex court along with interest under section 8(1B) of the Act in the case of Commissioner of Sales Tax v. Hindustan Aluminium Corporation [2002] 127 STC 258 (SC); [1999] UPTC 1. The apex court held as follows (at page 279 of STC): What is required is a plain interpretation of the provisions of section 8. Sub-section (1) thereof requires the assessee to deposit withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy has been upheld by the Tribunal. The dealer had been denying the taxability of the purchases on the ground that it were the sales that were taxable in the hands of the selling dealer because the revisionist did not furnish any form IIIA to them. The authorities below have treated the tax levied as the tax admittedly payable and the learned Tribunal has observed that the dealer had not wrongly admitted the liability for tax. Under the proviso to section 3AAAA as it stood at the relevant time no tax was leviable if it was proved to the satisfaction of the assessing authority that the goods so purchased had already been subjected to tax or may be subjected to tax under section 3AAA. Therefore, the admission or non-admission by the assessee is to be considered at the point of time when he furnished return and simply because by the time the assessment proceedings are taken the seller has not been subjected to any tax it cannot be said that the dealer had wrongly denied its liability. It is only recently that section 3AAAA has been amended by U.P. Ordinance No. 7 of 1994 with retrospective effect and the legal position as explained in the case of Shivam Tannery [1995] UPTC 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 8(1) of the Act, which was deleted by the Assistant Commissioner (Judicial). This order has been upheld by the Tribunal. Both the authorities have held that in the aforesaid circumstances the tax payable on the turnover could not be treated as admitted tax. This finding in my view is correct. There is no finding by the authorities below that the application under section 4A of the Act, was not bona fide and was a mere device to delay payment of admitted tax. The dealer's bona fides are demonstrated by the fact that it did not charge any sales tax from its customers. In the circumstances, the Tribunal's finding that the tax ultimately levied on the turnover was not admitted tax within the meaning of section 8(1) of the Act, is legally correct. In the case of Commissioner of Trade Tax v. Ram Ratan Ambrish Kumar [2003] 22 NTN 522 (All) for non-furnishing of requisite form IIIC(1) exemption was denied and on the assessed turnover, interest under section 8(1) of the Act was charged. The claim of the dealer was that no tax was charged from the customers and exemption was claimed in the return. Form could not be obtained because the business of the purchaser was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for payment of admitted tax within the time prescribed which under section 7(1A) is along with the return or before submitting the return. If the amount of admitted tax is not paid along with the return or before submitting the return, interest at two per cent per annum is payable under section 8(1) of the Act from the date immediately following the last date of filing the return till the date of payment of such amount. The Explanation to section 8(1) of the Act also defines as to what is the tax admittedly payable. It means the tax which is payable under the Act on the turnover of sales or purchases or of both as disclosed in the account maintained by a dealer or admitted by him in any return or proceedings under the Act, whichever is greater. However, rule 25B of the U.P. Trade Tax Rules (hereinafter referred to as, the Rules ), permits the dealer to furnish the declaration forms up to the date till which he is required to furnish the account for final assessment, in respect of the years to which the claim pertains. Explanation I to rule 41(2) deals with the admitted tax liability to mean the tax which is payable under the Act on the turnover as disclosed in the accounts m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, is whether calculation of tax payable was in accordance with the Act or not and, if liability to pay tax depends upon the fact which is to be proved by filing a declaration form and if it is not filed then it cannot be said that the calculation of tax payable was in accordance with the Act. Applying the principles laid down by the apex court in the aforesaid cases and by the Division Bench of this court in the case of Annapurna Biscuit Manufacturing Co. [1982] 50 STC 56; [1980] UPTC 1320, we are of the considered opinion that in a case where concession/exemption is claimed which is dependant upon furnishing of prescribed declaration form and a dealer fails to furnish the declaration form up to the time of assessment or thereafter in appeal, then the tax payable on such purchases/sales would be leviable at the normal rate which would be the admitted tax and the liability to pay interest at two per cent per month starts from the last date of filing the return in respect of such sales till its actual payment. As held by the apex court in the case of Qureshi Crucible Centre [1993] 89 STC 467 (SC); [1993] UPTC 901, the question of mala fide does not arise and likewise in our ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
