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2016 (7) TMI 714 - MADRAS HIGH COURT

2016 (7) TMI 714 - MADRAS HIGH COURT - TMI - Seeking revision of the order - CST - Delay in submission of declaration forms in Form C, F, E I and E II subsequent to the orders passed - Held that:- a reading of Section 9(2) of the CST Act shows that it is exhaustive and clearly specifies that the Authorities under the State Law can exercise all or any of the functions under the State for assessment, review, revision, re-convey measures, etc., for the purpose of assessment and recovery of tax due .....

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am, AGP ORDER Mr.S.Manohar Sundaram, learned Additional Government Pleader takes notice for the respondent. Heard both. By consent, the writ petition itself is taken up for final disposal. 2. The petitioner, which is a registered dealer on the file of the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter called the TNVAT Act) and the Central Sales Tax Act, 1956 (hereinafter called the CST Act), has filed this writ petition challenging the assessment order a .....

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impugned proceedings dated 27.6.2016, the respondent stated that as per the Proviso to Section 8(4) of the CST Act and as per Rule 12(7) of the Central Sales Tax (Registration & Turnover) Rules, 1957, declaration forms in Form C, F, E I and E II being filed subsequent to the orders passed could not be considered for revision of assessment under Section 9(2) of the CST Act, 1956 read with Section 84 of the TNVAT Act, 2006. 5. An identical issue came up for consideration before the Hon'ble .....

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before the prescribed authority either within the prescribed time or "within such further time as that authority may, for sufficient cause, permit". As a matter of construction of the proviso in the statute, if there is sufficient cause, further time will have to be allowed. The proviso to the Section does not insist that the assessee should establish before the prescribed authority that he was prevented by sufficient cause from filing the C forms in time. The "sufficient cause&qu .....

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aking authority, the burden is on the assesse to make out sufficient cause by explaining why he did not file, and what prevented him from filing, the C forms before the completion of the assessment. What is more, it is for the assessing authority to be satisfied about the existence of sufficient cause and its having prevented the assessee from filing the declarations within time. The difference between the two provisos is not merely one of language or of emphasis. The difference lies in the basi .....

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r him to invoke the power successfully. It also narrows down the discretion of the authority concerned. The question, however, is which is to be the master, the proviso in the Section or the proviso in the rule ? There can be no doubt about the legal position that a rule cannot prevail against the statute, by being repugnant to the statute. A study of the structure of the proviso to Section 8(4) shows how Parliament's peculiar preferences had worked in this regard. While Parliament was conte .....

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to allow further time, let alone prescribe the conditions subject to which any such power could be exercised. In this sense, the proviso to Rule 12(7) must be held to be ultra vires the rule-making power, to the extent that it is inconsistent with, or lays down tests or standards different from, the proviso to Section 8(4). It is quite clear that the proviso to Rule 12(7) is both superfluous and badly drafted. The indifferent drafting is all the more regrettable when the remember the legislativ .....

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may, we are clear in our minds that where an assessee seeks to file C forms beyond the stage of assessment, the relative power which the concerned authority should invoke is the power defined in the proviso to Section 8(4) and not the power defined in the proviso to Rule 12(7). 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 filed on sufficie .....

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ther 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 the particular pro .....

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