TMI Blog2015 (3) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... reductions that the provisions have been inserted. To give effect to the rule itself and completely that one finds that the Entry has been inserted. If that Entry has come into force as in the case of the present dealer at a later date, but is given effect to from the prior date, then, compliances with certain conditions can be made later on. How in several orders of the Tribunal itself, this condition is considered and held to be capable of substantial compliance. In the present case on the admitted facts, the Tribunal found that the condition is capable of substantial compliance. The later observations of the Tribunal with regard to the alleged delay need not detain us. If the provisions are read in their proper perspective and in the above background, then, the conditions in this Entry and particularly condition No. VI can be held to be capable of substantial compliance. If that is how the Tribunal as also we conclude, then the question of law referred for the opinion of this Court will have to be answered in favour of the dealer and against the Revenue. - Decided in favour of assessee. - Sales Tax Reference No. 6 of 2008, Reference Application No. 86 of 2005, Sales Tax Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was passed and referring the above question for opinion of this Court. 5. Mr. Thakar appearing in support of this Reference would submit that what the Tribunal order really connotes is that it is of the opinion that the requirement and particularly the condition No.VI after insertion of Entry J-8 is capable of substantial compliance. It does not admit of strict compliance. It is thus not mandatory but directory. Yet, the Tribunal has referred the above question and terming it as a question of law for opinion of this Court. The Tribunal has already expressed itself on this question and in series of orders which have been referred by the Tribunal in the course of the decision on the applicant's Second Appeal. The Tribunal was clearly bound by the view and opinion taken on similar question and issue earlier. It neither terms the opinion as erroneous nor does it disagree with it, but yet finds that the question is still open for being referred to this Court. This approach of the Tribunal is erroneous and in law. In any event, the Tribunal's findings on this issue would show as to how it concluded that this condition was substantially complied with. That is why it referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns as contemplated by Entry J- 8. Assessment proceedings were initiated on 4th December, 1997 and the order of assessment was passed on 9th December, 1998. Just before the conclusion of the assessment, the dealer filed revised annual returns on 26th September, 1998, merely to get the benefit of Entry J-8. Thus, the argument appears to be that by not filing monthly returns immediately after incorporation of Entry J-8 the dealer has not complied with the main condition of filing monthly returns and payment of tax accordingly. The dealer relied on several judgments of the Tribunal particularly in the case of M/s. New Neelam Restaurant in Appeal Nos. 140, 141 and 142 of 2000 decided on 6th October, 2001 and the judgment of the Hon'ble Supreme Court in the case of Acer India Limited reported in 137 Sales Tax Cases, 596. The clarification issued by the Senior Assistant Commissioner of Sales Tax was referred and the argument of the dealer was that delay in filing of the annual return should not come in his way once the conditions in Entry J-8 have been complied with. There are two orders which the Tribunal has referred and which were relied upon by the Revenue viz. in the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the same came to be inserted, held that the revised returns have been filed when the working of the tax was shown to the dealer by the Assessing Authority. The revised returns were not filed within a reasonable time and the reasons given for the delay are not convincing. 11. If the above conclusion has been reached, then, clearly there was no warrant for referring any question for opinion of this Court. The Tribunal has held that the condition is capable of substantial compliance. The Tribunal should have then taken care to refer to the condition itself. 12. Entry J-8 deals with the sales made by registered dealers from 1st October, 1995, in each month, of goods other than tax free goods in respect of which deduction from the turnover of sales under section 8 is not allowed only because of the provisions contained in sub-section (3) of section 12A, but excluding sales made against any declaration prescribed under the Act, the Rules or any Notification and (b) sales of any goods in respect of which the rate of sales tax specified in the schedule is 16% or more. The entries have been added and with some specific object and purpose. The purpose appears to be to deal with thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed deduction [under sub-section (1) of section 8] from the turnover of sales of goods because of the provisions of sub-section (3) [or, as the case may be, sub-section (3A) of section 12A, then in respect of such sales, he may deduct from the sale price, before reducing it in accordance with rule 46A, the purchase price of such goods excluding goods covered by entry 22 in Part II of Schedule C but including the purchase price of the goods used in the packing of the goods so sold, if such goods have been purchased from- (a) a Registered dealer who has been certified by the Commissioner under entry 40 of Schedule A or under entry 39 of Schedule A as the entry stood upto the 30th September 1995; or (b) a Registered dealer whose sales have been exempted from the payment of whole of the tax under any entry of the schedule to the notification issued under section 41, and (c) from any other Registered dealer, whether or not such Registered dealer has charged tax separately on his sale of such goods; Provided that, if a Registered dealer has claimed reduction of sale price, in respect of purchases referred to in clauses (a) or (b), then such dealer and his purchaser includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of law referred for the opinion of this Court will have to be answered in favour of the dealer and against the Revenue. It is answered accordingly. 14. We are pained and anguished to note that despite the Revenue not taking an extreme position and stand and rather agreeing to the interpretation of this condition still the Tribunal found it fit to refer the above reproduced question for opinion of this Court by terming it as a question of law. It could have answered that issue on the basis of its own orders. It could have also proceeded on the footing that the question being answered in the above terms does not mean that the application of this condition and to given facts and circumstances would present any problems or hurdles before the Assessing Authority or the Tribunal. If a condition is held to be capable of substantial compliance then whether the compliance as asserted is substantial, whether the condition is at all complied with are all matters which have to be addressed and gone into in the facts and circumstances of each case. Therefore, we are really surprised as to how repeatedly such questions and which could be termed as mixed ones can be referred for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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