TMI Blog2014 (4) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to grant the relief - Thus, in the absence of any material to show that the assessee had given sufficient cause for not making a claim before the Assessing Authority in the manner prescribed under the law. Relyin upon State of Andhra Pradesh Versus Hyderabad Asbestos Cement Production Ltd. [1994 (4) TMI 302 - SUPREME COURT OF INDIA] an appeal being a continuation of the assessment, the assessee may file Form A-4 before the Appellate Authority and the same would be subject to the assessee showing and satisfying sufficient cause and not otherwise - However, where there lies no dispute on the claim of unfructified sale, the claim must necessarily go by the provision of the Act and the Rules. As for the Forms filed beyond 30 days, in the absence of any satisfactory explanation, case of assessee is not acceptable - Thus, we accept the plea of the assessee for a remand only in respect of cases where the claim was made within 30 days of the receipt of the goods on unfructified sale with the complete details - Revision filed by the assessee stands dismissed in respect of the turnover for which the Forms were filed beyond 30 days' time frame and without assigning any reason bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which are essential for considering the claim for refund, Form-A4 was filled with blanks. Consequently, the claim was summarily rejected. After hearing the assessee, the Assessing Officer confirmed the assessment rejecting the claim for refund. 3. Aggrieved by the said rejection, the assessee filed appeal before the First Appellate Authority. The assessee contended that the filing of Form-A4 for refund is only directory and not mandatory, consequently, the claim for refund could not be denied. In this background, the assessee placed reliance upon the decision in the case of State of Tamil Nadu Vs. English Electric Co. Of India Limited reported in 84 STC 1. However, the assessee filed copies of A4 returns in complete shape with all details. The First Appellate Authority, however, rejected the claim of refund on unfructified sales. Thus, he rejected the contention of the assessee and held that the filing of Form was only mandatory. Aggrieved by this, the assessee went on further appeal before the Sales Tax Appellate Tribunal, which, confirmed the assessment. 4. The Sales Tax Appellate Tribunal pointed out that going by Rule 23(2-B) read with Section 4-D of the Act, it is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when there was no taxability under the Act, there was no necessity to go for tax payment. Having considered the claims of the assessee, the Tribunal, while rejecting the claim of the assessee pointed out that the assessee had neither complied with the mandate under Section 4-D of the TNGST Act for making claim within 30 days from the date of the unfructified sales nor claimed under Rule 23(2-B) of the TNGST Rules, which provided for alternative relief viz., making the claim by filing Form A4 within 30 days before the due date for filing the return for tax adjustment. In the light of the view thus taken, the appeal was rejected. Aggrieved by this, the present Tax Case Revision. 5. Before going into the contentions raised by the assessee, provisions of Section 4-D and the Rule 23(2-B) and Form A4 needs to be extracted herein:- Section 4-D: Refund of tax on unfructified sale :- Where the goods despatched by a dealer are returned for the reason that they were not taken delivery of by the person for whom they were intended, the dealer shall be entitled to claim refund of the tax paid by him on such unfructified sale : Provided that the claim is preferred within a period of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfy the conditions, the same would be rejected by the Assessing Officer. In other words, a claim has to be not only within the time limit of 30 days as prescribed under Section 4-D of the Act, but the claim has to be in the manner prescribed and subject to satisfaction of the conditions prescribed. 7. The relevant Rule 23(2-C), while touching on refund, however, provides for adjustment of the amount by way of deduction from the tax payable. Thus, while prescribing that the dealer claiming refund under Section 4-D of the Act must submit a statement of claim in Form A4 within 30 days of receipt of goods returned, alternatively, it permits the assessee to adjust the amount by way of deduction from the tax payable by him in accordance with the return in Form A1 or Form AA1. However, along with the return, the statement in Form A4 showing the claim relating to the goods returned within 30 days preceding the date on which the return is due is to be filed. The provision on the adjustment is similar to what is provided under Section 4-C of the Act relating to refund of tax on sales returns. Section 4-C(d) of the Act states that the claim for refund of tax could be filed within a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, a refund claim would be considered if made within a period of 30 days of receipt or despatch of the goods or before completion of final assessment, whichever is later, being a case of non-liability, an unfructified sale could not be put on a different platform or worse situation, than in the case of sale return. Thus, once, the assessee shows that the sale had not taken place at all, it matters very little whether the claim is made within 30 days of the goods returned or later than it. If before completion of final assessment, such claim is made through the prescribed Form filed within the prescribed time under the Act, the same ought to have been considered by the Assessing Officer. Taking the support of the decision of the Apex Court, he submitted that even if the same had been made before the Appellate Authority, the relief could be considered by the said Appellate Authorities. 11. We do not find any justifiable ground to accept this plea. We find that the grounds raised herein are not different from what was considered by the Sales Tax Tribunal as well as by the First Appellate Authority. 12. As far as the claim based on 94 STC 410 (State of Andhra Pradesh Vs. Hyderaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the First Appellate Authority is concerned, the assessee had not shown any reasons for the belated filing. Learned counsel for the assessee strenuously argued that filing of the Form within 30 days is not mandatory and it can be done at any time and the same can be accepted even at the appellate stage based on the reliance of the decision of the Apex Court reported in 94 STC 410 (cited supra). 15. Firstly on the admitted facts herein, the assessee had not filed Form A-4 within 30 days time limit prescribed and even thereafter, before the Appellate Authority without prescribed particulars on the belated filing, we do not find any justification to grant the relief. 16. As far as the claim based on Section 4-C of the TNGST Act is concerned, as already pointed out, even though Section 4-C(d) speaks about tax refund on sales return within the time specified therein, Rule 23(2-B) provides for adjustment of the amount by way of deduction from the tax payable by the assessee in accordance with the return in Form A1 or AA1 as the case may be. The only difference between Section 4-C and Section 4-D is that while in the case of Section 4-C extended time is given for lodging the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Vs. McMillan Co. (1958) 33 ITR 182 (SC), the Apex Court observed as follows:- While we agree that, in the first instance, the Income-tax Officer as the first assessing officer has to form an opinion about the applicability of the proviso to section 13, we do not agree that it is not open to any other authority, which is lawfully in seisin of the order of assessment of which the method of accounting under section 13 is only a part, to come to a different conclusion with regard to the applicability of the proviso. 20. Learned counsel appearing for the assessee placed heavy reliance on Rule 18(4) of the Tamil Nadu General Sales Tax Rules and submitted that given the fact of non-liability, once the assessment is made and the turnover is determined, the refund of tax is an automatic one. 21. We do not think that such line of reasoning is well received by this Court. The refund on an assessment under Rule 18 is different from the claim under Section 4-C of the Act. Here is a case, where the assessee originally included the turnover for assessment in the return, however, the moment he found that the goods discharged were returned on the ground that the purchaser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had shown reasonable cause on its failure to file the forms in time, the matter merited a remand back to the Assessing Officer. Thus, on the facts found therein, on sufficient cause, the Tribunal justified the need for making the remand. On facts, this Court thus confirmed the order. Hence, in this case, the Sales Tax Appellate Tribunal rightly held that the decision in the case of State of Tamil Nadu Vs. English Electric Co. Of India Ltd., reported in 84 STC 1 does not, in any manner, advance the case of the assessee, but supports the case of the Assessing Officer. 24. In the light of the above, we have no hesitation in rejecting the claim of the assessee that the time limit under Section 4-D is not mandatory. Having held that the time limit is mandatory in the nature of claim on non-liability of the transaction, we may however point out that as even in the assessment order, the Assessing Officer had admitted that out of the turnover of ₹ 52,23,651/-, some of the transactions are made beyond 30 days and some transactions are made within 30 days. Within the claim of ₹ 52,23,651/-, there appears to be some turnover, which falls for consideration, they be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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