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2016 (11) TMI 1074 - MADHYA PRADESH HIGH COURT

2016 (11) TMI 1074 - MADHYA PRADESH HIGH COURT - TMI - Deduction in respect of the branch transfers in absence of declarations - whether branch transfers to be treated as inter-State sales liable to Central Sales Tax? - rectification of mistake - revisional authority ought to have exercised its powers under section 71 of the MPCT Act to rectify the mistake within the statutory period and if within one year the order has not been rectified, then petitioner is entitled to get it rectified in its t .....

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he order dated 27.08.2013 which is beyond the scope of section 71 of the MPCT Act, 1994, therefore, there is no substance in the argument of the petitioner that by virtue of sub-section (2) if the application has not been decided within the specified time, the petitioner shall be entitled to have the order rectified in accordance with his application - The scope of section 71 cannot be enlarged to the extent of reviving or recalling the entire order on merit. The scope is very limited only to co .....

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in Revision No.44/2013/Central (for the period from 01.04.1992 to 31.12.1992). 2. Writ petition No.2511/15 has been filed against the order dated 27.08.2013 passed by the Additional Commissioner of Commercial Tax, Indore in Revision No.43/2013/State (for the period from 01.04.1992 to 31.03.1993). 3. Writ petition No.2517/15 has been filed against the order dated 27.08.2013 passed by the Additional Commissioner of Commercial Tax, Indore in Revision No.42/2013/Central (for the period from 01.04.1 .....

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egistered office at Mumbai. Petitioner Company is engaged in the business of manufacture, marketing and selling of large number of popular Fast Moving Consumer Good like toilet soaps, washing soaps, detergents etc. The petitioner company is having a depot at Indore in the State of Madhya Pradesh and is a registered dealer under the provisions of State and Central Tax/Commercial Tax Act. The petitioner is claiming to be a reputed corporate house having much magnitude of turn over and have a statu .....

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sment in State case. The assessing authority while completing the assessment refused to grant deduction in respect of the branch transfers in absence of declarations and has treated the said transactions as inter-State sales liable to Central Sales Tax. The assessing authority rejected the petitioner's claim for deduction in absence of requisite declaration and demanded additional demand of ₹ 75,91,261/-. Being aggrieved by the above order of assessment dated 24.02.1995, petitioner pre .....

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ings were initiated by respondent No.1 in compliance of the appellate order dated 21.09.1996. The petitioner contended before the assessing officer that all the original papers such as declarations in F form are kept in B file which is a part of the assessment record and the original papers and the declaration etc. are liable to be taken into consideration. Thereafter, the Assistant Commissioner passed a fresh order dated 31.12.1998 by which he has maintained his earlier order dated 24.02.1995. .....

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the same on merits. The appellate authority has further observed that in case B file is not traceable/available, the assessee may be asked to submit duplicate copies of the details and declarations already furnished by him and if such documents are furnished the same be also considered on merits. The said order was passed on 15.09.1999 by the first appellate authority. In pursuant to the above order of the appellate authority, Assistant Commissioner again considered the matter and vide order dat .....

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of the data/documents. Vide order dated 30.04.2003, the revision petitions were also dismissed by the revisional authority. Being aggrieved by the dismissal of the revisions, petitioner preferred four writ petitions before this Court in respect of four different orders of the revisional authority. By a common order dated 14.05.2013, all the four writ petitions were disposed of by this Court by setting aside the order passed by the revisional authority with liberty to the petitioner to submit du .....

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dated 15.09.1999 (Annexure P/5) had specifically directed the Assessing Authority to look into the B-File of the cases and thereafter decide the matter on merits. It was further observed that if B-File is not available then appellant be directed to submit a duplicate copy of the information and declaration which were submitted by it. The aforesaid directions issued by the Appellate Authority have not been complied with by the Assessing Authority in its correct perspective inasmch as no finding .....

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and other relevant information. Thereafter, before the Revisional Authority, when the petitioner had submitted an application seeking time to produce the duplicates, the prayer should have been allowed, but it was denied on the ground that no specific period is mentioned in the application within which the petitioner would submit duplicate copy of the declaration and other relevant material. This specific time limit if not asked for by the petitioner could have been fixed by the Revisional Auth .....

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by this Court, petitioner written a letter to the Additional Commissioner dated 26.08.2013 in which again he requested to the authority to procure the relevant B File of the case. Although this Court has directed the petitioner to submit duplicate declaration and supporting material, however, as contended by the petitioner, along with the letter (Annexure P/14 & P/15) he has submitted numerous documents for perusal and consideration of the revisional authority. 11. That vide order dated 27.0 .....

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y the order of the revisional authority, petitioner again approached this Court by way of these four writ petitions arising out of different revision cases in respect of respective assessment cases. 12. Counsel for the petitioner Shri P.M.Choudhary submits that during the course of fresh proceedings in consequence of the direction of this Court dated 14.05.2013 petitioner has filed details regarding its entire claim for exports along with respective copies of the invoice and Bills of Lading as p .....

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the period specified in sub-section (1) , the applicant shall be entitled to have the order rectified in accordance with his application and accordingly the Commissioner shall rectify the order within one calendar year. 13. Per contra, Shri Pushyamitra Bhargava, learned Dy.A.G argued in support of the order passed by the revisional authority and submitted that the revisional authority has granted ample opportunity to the petitioner for submitting B Form/ F Form and other declarations but the pet .....

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rties, we are of the considered opinion that the petitioner who is challenging the original assessment made by the assessing authority in the year 1995 on the ground that he is entitled for deduction in respect of the branch transfers, the assessing authority in its various orders has considered various transactions as reflected from the order dated 24.02.1995 (Annexure P/3) and passed the final order. The appellate authority as well as the revisional authority has considered number of times the .....

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l authorities these documents were either not legible or do not contain the certificate of clearance by the Customs Department. The petitioner has not controverted these facts in memo of writ petition. The petitioner has not pleaded that finding recorded by the revisional authority is perverse. The revisional authority in exercise of its powers has scrutinized the documents and rejected the same. This Court in exercise of powers under Article 226 of the Constitution of India cannot act as an app .....

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ught to have exercised its powers under section 71 of the MPCT Act to rectify the mistake within the statutory period and if within one year the order has not been rectified, then petitioner is entitled to get it rectified in its term of the said application. Petitioner has placed reliance over Section 71 of the MPCT Act which reads as under:- 71. Rectification of mistakes- (1) The Commissioner may- (i) On his own motion at any time within one calender year from the date of any order passed by h .....

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of enhancing the tax or reducing the amount of refund unless the Commissioner has given notice in writing to the dealer of his intention so to do and has allowed the dealer a reasonable opportunity of being heard. (2) Where on an application made by a dealer for the rectification of any order, the order is not rectified within the period specified in sub-section (1) , the applicant shall be entitled to have the order rectified in accordance with his application and accordingly the Commissioner s .....

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