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2016 (1) TMI 1105 - MADRAS HIGH COURT

2016 (1) TMI 1105 - MADRAS HIGH COURT - [2016] 89 VST 397 (Mad) - Illegality and arbitrariness - Revision order not passed for want of Form 'C' - Inter-state sale and sale made to SEZ - Respondent submitted that the Writ Petition is not maintainable, as the assessee / writ petitioner has invoked this jurisdiction despite the availability of an equally efficacious alternative remedy of filing an appeal - Held that:- the petitioner is regularly filing their monthly returns and complying with the s .....

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Petition is allowed by setting aside the impugned orders and directing the respondent to accept the Form “I” filed by the petitioner on 19.01.2016 for the sales made to “SEZ” for the assessment year 2011-2012 and pass orders afresh in accordance with law. - Decided in favour of petitioner - W.P. No.3080 of 2016 & W.M.P.No.2532 of 2016 - Dated:- 28-1-2016 - MR. K.KALYANASUNDARAM, J For the Petitioner : Mr.R.Senniappan For the Respondent : Mr.S.Kanmani Annamalai Additional Government Pleader [Tax] .....

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of the respondent. For the assessment year 2011-12, the petitioner effected inter-State sales to various buyers and reported total and taxable turnover of ₹ 33,50,153/- including a turnover of ₹ 23,95,914/- being sales made to SEZ . Thereafter, though the respondent has accepted the turnover reported by the petitioner, they have adopted higher rate of tax at 14.5% vide their proceedings dated 16.12.2015 for want of Form 'C' and Form 'I'. Therefore, it is the grievanc .....

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e respondent refused to pass the revised order. 4. Learned counsel appearing for the petitioner submitted that in an identical circumstances, the Commissioner of Commercial Taxes, Chennai, issued a circular dated 01.02.2000, by stating that instead of driving the assessee to go on appeal for reopening and considering the C Forms filed at the time of hearing the appeal, the Assessing Officer themselves may reopen the cases admitting the new C Forms and passing the revised assessment order upon ve .....

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at the Writ Petition is not maintainable, as the assessee / writ petitioner has invoked this jurisdiction despite the availability of an equally efficacious alternative remedy of filing an appeal. 6. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 7. Given the facts and circumstances of the case, it is relevant to extract Section 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957, which is reproduced hereunder: Rule12.(7) .....

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n or certificate to be furnished within such further time as that authority may permit. " Though specific time has been provided in filing Form C under Rule 12(7) of the CST (R&T) Rules, under the proviso of the said Rule, the power is vested with the Prescribed Authority to allow such declaration forms/ certificates to be furnished within such further time on being satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration forms/certificates .....

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ted 01.02.2000 issued by the Commissioner of Commercial Taxes, Chennai. For better appreciation, the same is reproduced hereunder: the first original assessment order is to be passed with the maximum available 'C' forms. However, where the party subsequently produces 'C' Forms from other States invoking the provision that he(assessee) had tried his best, but it was beyond his control, because 'C' Forms were either not readily available or not readily issued in those State .....

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of the authority concerned and which enables it to allow further time without bothering about any onus on the assessees. Following the decision, this facility must be extended without fail. Instead of driving the assessee to go on appeal for this simple matter and getting case remanded by the appellate forum for reopening and considering the 'C' forms filed at the time of nearing the appeal, the Assessing Officers themselves may reopen the cases, admit the new 'C' forms, check o .....

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ly his mind and decide about the 'C' forms, without insisting the onus on the assessee. . The above said circular itself has been based on the basis of Arulmurugan's cased (cited supra) passed by the Full Bench of this Court. Relevant portion of the said judgment is extracted below: 19. We do not think there is any room for the perplexity given expression to by the learned Government Pleader. Given the assessing authority's undoubted power to allow further time for C forms to be .....

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ower to allow further time cannot be withheld on the excuse that there is not express provision either in the statute or in the statutory rules for reopening the assessment. When the power is there and the facts are there demanding its exercise, the implementation must be done as a matter of course, on the doctrine of implied or ancillary powers. Where there is a power, and where there is a will, there will be a way. It is, however, unnecessary to pursue the line of discussion further, because t .....

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before us. In both the cases, the assessee concerned did not file C forms with the assessing authority before the completion of the assessments. Naturally, therefore, the turnovers in question were charged to tax at the rate of 10 per cent, instead of at the concessional rate of 4 per cent. Both the assessees appealed against their respective assessments. In both the cases, leave to file the relevant C forms was asked for, at the appellate stage. The Appellate Assistant Commissioner, however, d .....

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ake the assessment afresh on the basis of the C forms received at the appellate stage. In the other case, without setting aside the assessment, the Tribunal forwarded the C forms to the assessing authority, directing that authority to scrutinise the C forms and find out if they complied with the formalities. 21. Having regard to the considerations which we have set out in the foregoing paragraphs, we must uphold the decision of the Tribunal in both the cases. We hold that the Tribunal has the po .....

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