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2015 (3) TMI 915 - BOMBAY HIGH COURT

2015 (3) TMI 915 - BOMBAY HIGH COURT - [2015] 85 VST 277 (Bom) - Belated filing of return - tribunal found that the return was filed belatedly and as an after-thought - The Entry was further amended in the year 1997. The annual return was filed on 2nd July, 1998 showing tax liability as per the provisions of Entry J-8. Therefore, the claim of the dealer was that benefit of this Entry be granted to him and the matter be remanded back to the Assessing Authority to work out the tax liability in acc .....

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if the dealer in this case who was registered has dealt with another registered dealer, then, with a view to enable him to obtain these 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.

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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 Reference No. 70 of 2009, Reference Application No. 69 of 2009 - Dated:- 10-3-2015 - S. C. Dharmadhikari And S. P. Deshmukh,JJ. For the Appellant : Mr C B Thak .....

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as justified in denying the benefit of entry J-8 to the appellant in the context of assessment for the period 1995-96 on the ground that the appellant has not complied with the condition of filing returns as contemplated under entry J-8 which has been introduced on 6.3.1996 with retrospective effect i.e. subsequent to the assessment period ?" 2. The statement of facts which accompany this Reference reveals that M/s. Auto India-applicant is an importer and re-seller of vehicles, vehicle comp .....

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eals). That was partly allowed on 2nd January, 2001. Still being dissatisfied, the dealer preferred a Second Appeal before the Tribunal. The Second Appeal being Appeal No.485 of 2001 came to be allowed partly by a judgment and order dated 10th June, 2005. The matter was remanded to the Assessing Authority with directions and one of which is that benefit of Entry J-8 is not available to the dealer-appellant before us. 4. It is in these circumstances that a Reference Application invoking the power .....

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ion 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 .....

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ese circumstances that it concludes further that the return was filed belatedly and as an after-thought. If such a return was capable of being considered and scrutinized, then the condition is but directory and capable of substantial compliance. The Tribunal, therefore, was not required to refer any question for opinion but simplicitor deal with the case of the dealer on merits. 6. On the other hand, Mr. Sonpal submits that what the Tribunal's conclusion really denotes is that the condition .....

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trine of strict compliance and substantial compliance simply because we find that the Tribunal has extensively referred to the contentions of the parties. In the course of dealing with this issue, the Tribunal found that Entry J-8 has been incorporated on 6th March, 1996, with retrospective effect from 1st October, 1995. In the case before us, the dealer had filed usual monthly returns claiming deduction under Rule 46A and showing tax liability at various rates i.e. 10%, 13%, 16% and 19%. The En .....

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this benefit was not available. The argument of the Revenue was that the dealer should have filed monthly returns immediately after incorporation of Entry J-8, but the dealer has failed to do so. Even after the amendment of Entry J-8 in the year 1997, the dealer has miserably failed in filing monthly returns 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 ass .....

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h 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 .....

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e. Late filing of monthly returns does not affect the claim of the dealer. Once again, all these are termed as arguments or stand of the dealer and by placing reliance on a clarification from the office of the Commissioner of Sales Tax dated 6th January, 2003. If condition of filing returns is considered as directory not mandatory by the Tribunal in the two appeals decided by it, then, the Tribunal was obliged to make a reference to those cases in details. The Tribunal was obliged to consider as .....

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the case laws in the field and the case of the dealer and the Revenue. If we note the stand of the Revenue itself, then, it is apparent that its representative did not adopt an extreme position nor did the representative contend that the Entry J-8 having been incorporated on 6th March,1996, further amended in 1997, the monthly return should have been filed after incorporation but that the dealer failed to do so in this case. Thus, the extreme position as the Tribunal found from the stand of the .....

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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 .....

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een added and with some specific object and purpose. The purpose appears to be to deal with those cases where resales made by a registered dealer from a certain period in each month of goods other than tax free goods in respect of which turnover of sales under section 8 is allowed. Therefore, if one refers to section 8 of the Bombay Sales Tax Act, 1959, it would be apparent that the same deals with single point levying of sales tax on goods specified in Schedule C. The existing section may have .....

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ed in sections 11 or 12 if the requirements of section 12 are satisfied. Then, there is certain proviso and sub-clauses and explanation. Therefore, if resales are made by registered dealers of goods other than the tax free goods in respect of which deduction from turnover of sales under section 8 is not allowed only because of the provisions contained in sub-section (3) of section 12A, but certain exclusions therefrom are dealt with by this Entry. The Entry is itself referable to these provision .....

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nd which is Rule 46B. The rule as it stood at the relevant time and before it was deleted provides for and deals with the reduction of sales price for levy of sales tax in the case of a dealer liable for levy of value added on sales tax on goods specified in Schedule C. The said rule reads as under: "46B. Reduction of sales price for levy of tax in the case of a dealer [liable for levy of value added of sales tax on goods specified in Schedule C.]-(1) If a Registered dealer "has not be .....

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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 .....

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I - For the purpose of this rule, the expression 'purchase price' shall mean the amount of purchase price increased by the amount of sale tax if such tax is collected separately from the claimant dealer by another Registered dealer. Explanation II - For the purpose of this rule, the expression 'sale price' shall mean the amount of sale price increased by the amount of sales tax if such tax is collected separately by the claimant dealer from his purchases." 13. A perusal ther .....

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red dealer, then, with a view to enable him to obtain these 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. If one is concerned with only condition No.VI then, we have already indicated as to how in seve .....

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ble 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. 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 th .....

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