TMI Blog2014 (10) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of sale, if the conditions specified in sub-section (1) of Section 6A are not satisfied . If a dealer claims a transaction to be covered by Section 6 A of the CST Act, then he has to satisfy the conditions mentioned in the said provision and has also to submit a declaration in Form F, which should be genuine one. An in-genuine Form F may not entitle the dealer to avail the benefit under Section 6 A of the Act in respect of a particular transaction, for which, in-genuine Form F has been filed. - A case involving claim under Section 6 A of the CST Act stands on different footing than the case of interstate sale against Form- C, in which case, it may be possible that selling dealer has bona fidely effected interstate sale and bona fidely received Form-C to avail concessional rate of tax - Decided against assessee. - Sales/Trade Tax Revision Defective No. - 70 of 2014 - - - Dated:- 6-9-2014 - Hon'ble Surya Prakash Kesarwani,JJ. For the Applicant : Suyash Agrawal, Rakesh Ranjan Agarwal For the Petitioner : C.S.C. ORDER 1. Heard Sri Rakesh Ranjan Agarwal, learned Senior Advocate, assisted by Sri Suyash Agarwal, learned counsel for the applicant and Sri B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 431 dated 8.9.2010 accompanied with the letter of the Commercial Tax Department and IP State, New Delhi. As per report of concerned Delhi VAT Officers Form 'F' No. 03Q873645, 04Q715866, 03Q982073 and 03Q982074 were not issued from Zone-08 CFC (Ward-84) as per record available . The case of the applicant is that these Forms-F were received by him from his agents M/s Rajdhani Traders, Delhi for ₹ 4,98,43,435/-. Likewise, verification was sought of Form-F No. 03Q725091 and 03Q725092 said have been received from the agent M/s Radhika Enterprises, New Delhi for ₹ 3,01,73,690/-. Report was received from the concerned, Commercial Tax Authority under the Delhi VAT Act through the Deputy Commissioner (SIB) Commercial Tax -Unit-I, Ghaziabad vide D.O. Letter No.03630, dated 13th November, 2010 that these two Forms-F have not been issued by the Delhi VAT Authorities to the aforesaid M/s Rakhika Enterprises, New Delhi rather these forms were issued to another firm M/s A.K. Technical Power Limited having TIN No. 07290176998. Thus, the total amount covered by the aforesaid six Forms-F was of ₹ 8,00,17,125/-. The assessing authority, vide assessment order 31st March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion or exemption to the selling dealer. (v) If any illegality was committed by the aforesaid agents of the applicant then the jurisdictional authority i.e. the Delhi VAT Authority should have initiated proceedings under Section 10A of the CST Act against those agents. But the benefit of Form-F, under Section 6A of the Act cannot be denied to the applicant. 8. In support of his submission, he relied upon the judgment of Hon'ble Supreme Court in the case of Chunni Lal Parsadilal Vs. CST, (1986)62 STC 112 (SC) and the judgment of this Court in the case of Star Paper Mills Ltd. Vs. CST, 2004 UPTC 317 (Alld, Bharat Iron Store Vs. CST, 1994 UPTC 130, Indra Steel P. Ltd. Vs. CST, 1995 UPTC 4, C.S.T. Vs. Rana Steels, 2003 UPTC 532, Khanha Vanaspati Ltd. Vs. CTT, 2002 UPTC 50, C.S.T. Vs. Misrilal Oil Mills, 1996 UPTC 68, C.S.T. Vs. Anil Metal Industries , 1999 UPTC 559, CST Vs. Gelton Industries , 2004 UPTC 770 and the judgment of Delhi High Court in the case of Milk Food Ltd. Vs. Commissioner VAT Others, (2013) 59 VST 1 (Del). 9. He further submits that it is the settled position of law that if the selling dealer has bonafidely received certain Forms for concessional rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the following manner :- Section 6-A(1) (i) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, (ii) the burden of proving that the movement of those goods was so occasioned shall be on that dealer, (iii) and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, (iv) a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods and (v) if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale. 14. Sub-section (2) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the CST Rules, 1957 provides that the declaration referred to in sub-section(1) of Section 6A shall be in form -F. Sub Rule( 6) of Rule 12 provides that Form-F referred to in sub-rule(5) shall be the one obtained by the transferee in the State in which goods covered by such Form are delivered. This clearly indicates that Form-F has to be obtained by the transferee from the prescribed authority in the State in which the goods covered by such forms are delivered. 19. The word 'such declaration' used in the last part of Section 6A refers to the expression 'a declaration in the prescribed form obtained from the prescribed authority' used in the earlier part of Section 6A. In the case of Mohan Lal and another Vs. Grain Chamber Ltd. Muzaffarnagar Others, AIR 1959 (Alld) 276, this Court observed that when the word 'such' is used before a noun in a later part of a sentence, the proper construction in the English language is to hold that the same noun is being used after the word 'such' with all its characteristics which might have been indicated earlier in the same sentence. In the case of M/s Bright Brothers (P) Ltd., Bombay Vs. J.K. Sayani, AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned as a result of sale, if the conditions specified in sub-section (1) of Section 6A are not satisfied . 22. There is another aspect of the matter. Stock transfer of goods is made by a dealer either to his another place of business or to a place of business of his agent or principal. Thus the other place of business is not of a stranger but his own place of business or his agent/ principal's place of business. Therefore, he cannot escape his liability to tax in the circumstances that Form F has not been obtained by his branch or agent from the prescribed authority under the CST Act or the form itself is forged, bogus or fabricated. In such cases even the question of receiving it bonafidely from his own branch or agent, would not arise at all as his branch is not a separate legal entity and agent is his own extended hand. Nothing has been brought on record by the applicant to show that any effort was made by him to lead any evidence that Form-F in question were obtained from the Prescribed Authority of his Branch or agent in the other State. In case where a dealer claims benefit of Section 6A of the CST Act on the strength of Forms-F and the Assessing Authority on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer of the other place of business or his agent or principal. Such declaration shall be made in the prescribed Form F obtained from the prescribed authority. The dealer is also required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. Failure to furnish such declaration, by reason of legal fiction, shall render such movement of goods would be deemed for all purposes of the CST Act. When the dealer furnishes the original Form F to its assessing authority, an enquiry is required to be held. Such enquiry is held by the assessing authority himself who may pass an order on such declaration before the assessment or along with the assessment. Once an order in terms of Sub-Section 2 of Section 6A of Central Act is passed, the transactions involved therein would go out of the purview of the Central Act. 24. In the case of Ashok Leyland Ltd. (Supra), Hon'ble Supreme Court held as under: 44. The liability to tax on inter-State sale as contained in Section 6 is expressly made subject to the other provisions contained in the Act. Sub-section (2) of Section 9, on the other hand, which is a procedural provision starts with the words subject to the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to the amendment in Sub-section (1) of Section 6A the dealer had ah option of filing a declaration in Form-F; after such amendment, he does not have such option, insofar as in terms of the amended provision, if the dealer fails and/or neglects to file such a declaration, the transaction would be deemed to be ah inter-State sale. It is to be noticed that for the aforementioned purpose also, the Parliament advisedly used the expression 'deemed'. If the expression 'deemed' is interpreted differently, an incongruity would ensue. 75. In absence of any indication that the Parliament while enacting Sub- section (2) of Section 6A did not intend to make the deeming provisions to be a conclusive fact as regard occasion of the transaction having taken place otherwise than as a result of sale, it would have dealt with the matter differently. 76. Section 6A(2) of the Act uses the following expressions which are important : (1) 'thereupon'; (2) 'for the purpose of this Act'; (3) 'the movement of goods to which the declaration related shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale'. 77. Ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice or his agent and not to any third party. Any other enquiry is beyond the realm of the assessing authority. 110. In Sahney Steel (supra) whereupon reliance has placed by the assessing authority, a contention was raised that the registered office and the branch office were separately registered as dealers under the sales tax law and transaction effected by the branch office should not be identified with transactions effected by the registered office, Pathak, J., as the learned Chief Justice-then was, observed : ..We are unable to agree. Even if, as in the present case, the buyer places an order with the branch office and the branch office communicates the terms and specifications of the orders to the registered office and the branch office itself is concerned with the sales dispatching, billing and receiving of the sale price, the conclusion must be that the order placed by the buyer is an order placed with the Company and for the purpose of fulfilling that order the manufactured goods commence their journey from the registered office within the State of Andhra Pradesh to the branch office outside the State for delivery of the goods to the buyer... 111. The Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t view of the matter, mere change in the opinion of the assessing authority or to have a re-look at the matter would not confer any jurisdiction upon him to get the proceedings reopened. Discovery of a new material although may be a ground but that itself may not be a ground for reopening the proceedings unless and until it is found that by reason of such discovery, a jurisdictional error has been committed. In other words, when an order passed in terms of Sub-Section (2) of Section 6A is found to be illegal or void ab initio or otherwise voidable, the assessing authority derives jurisdiction to direct reopening of the proceedings and not otherwise. 116. In Shrisht Dhawan (supra) this Court has held: 20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likes a fraudster to Milton's sorcerer, Compus who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequences depending upon the nature of the declaration. A declaration may be (1) an assurance of an existing state of affairs or (2) an assurance of a future course of conduct by the declarant himself or (3) a statement of required conduct by a third party. In the first two kinds of declarations the onus is one the declarant to make good the declaration. In other words the truth of the declaration may be verified. But when all that is stated in the declaration is a requirement to be fulfilled by another, what is to be enquired into is compliance with the requirement and not the correctness of the declaration itself. The Revenue has failed to keep in mind the distinction between different kinds of declarations. Most of the cases cited by the Revenue in this context deal with the first and second kinds of declaration where the declaration asserts a present of future state of affairs and seeks to certify as true, facts which may be questioned by the authority which is called upon to act on such certification whereas declarations under the notification fall into the third category. 48. Declarations to be furnished in Form 'C' by registered purchasing dealers under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j v. Additional Collector of Customs, [1991] 2 SCC 443 the full export value had not been stated in the shipping bills and G.R.I. forms. This was admitted but was sought to be explained by the importer. The explanation was not accepted by the Customs Authorities because to do so would have contravened the Foreign Exchange Regulation Act. In both these cases this Court upheld the action of the Customs Authority in taking action against the person by going into the truth of the declaration. 26. In view of above discussions, I am of the view that if a dealer claims a transaction to be covered by Section 6 A of the CST Act, then he has to satisfy the conditions mentioned in the said provision and has also to submit a declaration in Form F, which should be genuine one. An in-genuine Form F may not entitle the dealer to avail the benefit under Section 6 A of the Act in respect of a particular transaction, for which, in-genuine Form F has been filed. 27. The tribunal has found that enquiry into the facts of the case can be better made by the assessing authority and, as such, it remanded the matter. If according to the petitioner, the transactions are genuine and it fulfils all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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