9911796707
TMI Blog2011 (9) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... and (iii) To issue a writ of mandamus directing opposite party No. 3, Deputy Commissioner of Sales Tax, Barbil Circle, Barbil, to consider the effect of filing of the wanting C forms under rule 12(1)(a) and (b) of the CST (O) Rules. The petitioner's case in a nutshell is that the petitioner-company is a registered dealer under the OVAT Act carrying on the business of works contract at Joda. It has entered into an agreement with M/s. TATA Steel Ltd., (for short, "TATA")for carrying out the works contract of material handling system for handling iron ore dispatch for 6.8 and 10 MTPA expansion at Joda Iron Ore Mines. The petitioner-company as per agreement in certification of TATAhad procured plants and machinery by way of purchase in course of inter-State trade and commerce from outside States on payment of Central sales tax. While the said goods were in course of transit, the petitioner sold the said goods to TATA on the basis of transfer of documents under section 6(2) of the Central Sales Tax Act, 1956 (for short, "the CST Act."). As per the requirement of section 6(2) of the CST Act, the purchasing dealer, i.e., TATA is obliged to furnish the declaration forms C to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied C forms to TATA, as a result of which TATA was not able to supply the said forms to the petitioner. It is submitted that without giving sufficient opportunity to the petitioner in terms of language and spirit of proviso to rule 12(1)(b) of the CST (O) Rules opposite party No. 3 has rejected the petitioner's application dated April 20, 2011 filed before him seeking time till taking up the audit assessment for production of C forms. The aforesaid conduct of opposite party No. 3 smacks of mala fides. The assessing authority arbitrarily completed the provisional assessment and raised huge tax demand hurriedly even though no time-limit is provided in the statute for passing provisional order of assessment. After completion of the provisional assessment, opposite party No. 3 had issued C declaration forms to TATA on July 2, 2011 and in turn TATA had handed over the C forms covering the transactions of subsequent sale under section 6(2) to the petitioner. The petitioner, thereafter, submitted the said C forms before opposite party No. 3 on July 16, 2011. Thus, the petitioner has submitted all the C forms as pointed out by opposite party No. 3 in the notice in form IIB under an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit." CST (O) Rules, 1957 "R. 7A. Statements and declaration forms/certificates.-(1) Every registered dealer, while filing return under rule 7, for the month/ quarter ending on 30th of June, 30th of September, 31st of December and 31st of March every year, shall furnish to the assessing authority, the declaration and/or certificates as referred to in sub-rule (7) of rule 12 of the CST (R & T) Rules, received from the purchasing dealers/transferees for the transactions made in the quarter preceding to the quarter for which the return is filed as above showing the particulars of transactions in the statement of form C, EI/EII, F, H, I and J as applicable." "R 12. Assessment.-(1)(a) . . . (b) In cases where any or more of the conditions as mentioned in clause (a) above is not fulfilled, the assessing authority shall proceed to assess the tax due provisionally, giving due opportunity to the dealer, on account of- (i) declaration forms/certificates not furnished in support of claim for exemption, deduction and/or conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re were sufficient cause for not furnishing the declaration forms/certificates within the time provided under rule 12(7) of the CST (R & T) Rules, 1957 and rule 7A of the CST (O) Rules, without permitting further time to the petitioner to furnish the required declaration forms/certificates, the assessing authority passed the provisional orders of assessment hurriedly under rule 12(1)(b) of the CST (O) Rules. In our view, opposite party No. 3 is justified in rejecting the petition dated April 20, 2011 wherein a prayer had been made to allow time for furnishing declaration form till audit assessment is taken up. Under the OVAT Act, CST Act and OET Act and Rules made thereunder, there is no provision for making the audit assessment for every tax period in respect of all the registered dealers. Therefore, if the contention of Mr. Lal, learned senior advocate, would be accepted then in many cases where no audit assessment is made, tax due to the Government on account of non furnishing of declaration forms by the registered dealer cannot be collected/realised. Further contention of Mr. Lal is that since no limitation has been prescribed to complete the provisional assessment, opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk, that period should be the appropriate standard adopted for computing reasonable time to raise a claim in a matter of this nature. For this reason also we find the claim made by the respondent ought to have been rejected by the Commission." As stated above, the provisional assessment ought to have been made within a reasonable time and therefore, the assessing authority is fully justified to insist the dealer-petitioner to furnish declaration forms on the basis of periodical return filed when the declaration forms were not filed within the time allowed under the rule 12(7) of the CST (R & T) Rules and rule 7A of the CST (O) Rules. The above contention of Mr. Lal also can be looked at from another angle. Under rule 12(7) of the CST (R & T) Rules, 1957 and rule 7A of the CST (O) Rules, time is specified for furnishing declaration forms. It is only rule 12(7) of the CST (R & T) Rules, provides that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause for furnishing such declaration forms/certificates within the time provided, such authority may allow further time to furnish the declaration forms. Similarly, proviso to rule 12(1)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder rule 12(7) of the CST (R & T) Rules and rule 7A of the CST (O) Rules and by the time the provisional assessment was passed under annexure 3 series. It may be noted that non-furnishing of declaration forms by the purchasing dealer to the selling dealer cannot always constitute a sufficient cause to permit the selling dealer further time for furnishing the required declaration forms/certificates. What is sufficient cause to permit further time to the selling dealer for furnishing the required declaration forms/ certificates depends upon facts of each case. Under proviso to rule 12(7) of the CST (R & T) Rules as well as proviso to rule 12(1)(b) of the CST (O) Rules discretion is vested with the prescribed/assessing authority to permit further time to a dealer to file declaration forms/certificates. Needless to say that any discretion vested with the quasi-judicial, judicial and administrative authorities should be exercised judiciously. The discretion vested with the prescribed/assessing authority to permit further time to the dealer for furnishing the required declaration forms/certificates for sufficient cause, must be exercised fairly and bona fide and must answer the test o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
