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TMI Blog2019 (1) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the Central Sales Tax Act, 1956 ("the CST Act" for short). The appellant's accounts produced earlier for check had accounted for total sales of Rs. 2,86,13,824.00 under the CST Act as shown below: Inter-State sales as per accounts - Rs. 55,40,350.00 Value of goods sold to Inter-State consignee - Rs. 2,30,73,474.00 Total - Rs. 2,86,13,824.00 The Assessing Officer found that the appellant had not reported the consignment despatches as required under the CST Act. He also found that the inter-State sales were overstated by Rs. 8,815.00 (Rs. 55,49,165.00 - Rs. 55,40,350.00). This difference being not reconcilable, the Assessing Officer proposed to treat this turnover as unaccounted sales for bringing them under the tax net. The Assessing Officer noted that though the appellant had not reported inter-State consignment despatches as required, it had filed the following documents in support of the consignment transfers: (1) Statement of consignment sales showing monthwise and agentwise details of consignment despatches along with particulars of G.C. notes. (2) Consignment sale pattials received for the inter-State agents. (3) Copies of consigner copy of transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of lorry receipts, those lorry receipts are not found to contain any evidence to show that the goods were delivered at the warehouses or business premises of the concerned agent duly accounted for in their stock account. Copies of the goods consignment notes raised by the appellant were not filed. Mere statements were filed. Hence facts could not be verified. The Assessing Officer further observed that the details of remittances of sales proceeds of the goods by the agents were not produced for verification. The addresses of the agents where the goods were sent or consignments were delivered were not disclosed nor any proof of existence of such warehouses and actual delivery of the goods at that place could be ascertained from the records produced by the appellant. The Assessing Officer, further, observed that in view of this, the correctness of Form 'F' declarations could not be verified and bona fide nature of the consignment transfers could not be ascertained. The Assessing Officer further observed that some of the consignments were sold in the same quantity in which they were sent either on the same day or the next day. The Assessing Officer concluded that since the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Appellate Assistant Commissioner that merely because the documents were not presented in the required form that will not make the appellant ineligible for exemption on consignment sales. Taking note of all the documents and the submissions, the Appellate Assistant Commissioner held that the appellant must be given an opportunity to produce the documents which are in its possession. He, therefore remanded turnover of Rs. 2,36,39,542/- to the Assessing Officer for giving the appellant one more opportunity to produce the documents for claiming exemption on consignment sales. Question of levy of penalty was also consequently remanded. On remand, the Assessing Officer vide order dated 30.09.2002 restored the original assessment order. He observed that the appellant was required to produce the following documents: 1. Copies of Agreement entered into with the Agents in other states. 2. Copies of indents placed, if any, by the Agents for sending the goods. 3. Copies of stock Transfer Invoices. 4. Copies of Lorry Receipts for the movement of goods to outside the state. 5. Copies of sale pattials rendered by the Agents in other States. 6. Copies of stock account mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larations. (d) The sale pattials filed by the appellant contain details such as delivery challan number, vehicle number, lorry receipts number and date, lorry freight, quantity received, value, quantity sold, tax collected, the bill number and date which prove that the consignments which moved out of State were accounted for and taxes were paid thereon. Details of remittances would be available in the sale pattials. (e) Consignment sales statement shows month-wise and agent-wise details of consignment despatches along with particulars of GC notes, consignment sales pattials received from the inter-State agents, consignor copies of transfer documents (LR) and copies of consignment agreements. The Appellate Assistant Commissioner was not impressed by the observation of the Assessing Officer that the lorry receipts in respect of consignment transfer did not contain any evidence to show that the goods were delivered at the warehouse of the concerned agent and were duly accounted for in their stock account because according to him the necessary details were available from other documents. The Appellate Assistant Commissioner held that the goods were sent by Goods Carriers. They had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by this order, the State of Tamil Nadu preferred an appeal being STA 411 of 2005 to the Tribunal. The said appeal was allowed by the Tribunal vide its order dated 19.10.2012 which is impugned in this appeal. Mr. V.V. Sampathkumar, learned Counsel for the appellant submitted that the appellant has filed the necessary documents as observed by the Appellate Assistant Commissioner in his order dated 18.08.2004. The Tribunal has not considered those documents and wrongly held that the appellant has failed to prove its claim for exemption. Counsel submitted that the Tribunal has wrongly observed that the appellant has failed to disclose consignment transfers in the books of accounts when in fact they are clearly reflected in the books of accounts. Counsel submitted that by filing Form F declarations, the appellant has discharged the burden and hence the impugned order be set aside. Mr. K.V. Vijaya Kumar, learned Counsel for the State of Tamil Nadu on the other hand supported the impugned order. Counsel submitted that no case is made out for interference with the same. It is, therefore, necessary to now turn to the impugned order. The Tribunal concurred with the observations of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. They have been verified by the Assessing Officer. According to the Appellate Assistant Commissioner the sale pattials also contain the required details and therefore observations of the Assessing Officer that lorry receipts did not contain any evidence to show that the goods were delivered at the warehouse of the agent and were duly entered into in the stock account, accepting it to be true may not by itself disprove the appellant's claim. It is, therefore, necessary for the Tribunal to examine the sale pattials and Form 'F' declarations. It is observed by the Assessing Officer that addresses of the warehouses of the agents are not disclosed therefore actual place of delivery of goods could not be ascertained. In this connection, it is important to note that the Appellate Assistant Commissioner has observed that the consignment agreements are on record. This is accepted by the Assessing Officer in its original assessment order. Therefore, it was necessary for the Tribunal to discuss the consignment agreements which according to the Appellate Assistant Commissioner contain necessary details. There is no discussion about this aspect. While the Appellate Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer who claims that he is not liable to pay tax because there are no inter-State sales. Section 6A(1) of the CST Act states that where any dealer claims that he is not liable to pay tax under the CST Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned is on that dealer and for this purpose he may furnish to the assessing authority a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods. Section 6A(1) of the CST Act further states that if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of the CST Act to have been occasioned as a result of sale. Sub-section (2) of Section 6A of the CST Act states t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal, as the case may be. For the purpose of discharge of such burden of proof, the dealer is required to furnish to the assessing authority within the prescribed time a declaration duly filled and signed by the principal office of the other place of business or his agent or principal. Such declaration would contain the prescribed particulars in the prescribed form obtained from the prescribed authority. Along with such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale. Such declaration, indisputably, is to be filed in Form F. The said form is to be filled in triplicate. The prescribed authority of the transferee State supplies the said form. The original of the said form is to be filed with the transferor State and the duplicate thereof is to be filed before the authorities of the transferee State whereas the counterfoil is to be preserved by the reason where the agent or principal of the place of business of the company is situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether the particulars contained in the declaration (F forms) are 'true'. It is not possible to specify the documents or other materials or papers that may be required, to be furnished in all situations and in all cases. It depends upon the facts and circumstances of each case. The power vested in the officer is a wide discretionary power, to find, whether the particulars contained in the declaration (F forms) are 'true'. It is not possible or practicable to lay down the exact documents or materials that may be required in all the cases, by the assessing authority, to come to a proper and just finding as required by Section 6-A(2) of the Act." The Supreme Court then observed that the order of an authority under Section 6A is conclusive for all practical purposes. Thus after receipt of Form 'F' declaration, it is the duty of the Assessing Officer to verify and satisfy himself that the particulars contained in the declaration furnished by the dealer are true. During this enquiry, it is open to the Assessing Officer to require the dealer to produce all relevant documents or other papers or materials which are germane or relevant to find whether the particulars contained in Form ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s inability to verify correctness of Form 'F' declaration is stated to be non-filing of documents. The Assessing Officer in his original assessment order has admitted that the appellant filed sale pattials, consignment agreements, copies of consignor, copy of transport documents, statement of consignment sales showing monthwise and agentwise details of consignment despatches along with particulars of G.C. notes. The Appellate Assistant Commissioner in his order dated 18.08.2004 has referred to several documents. It is difficult therefore to come to a conclusion that the Assessing Officer was unable to make any enquiry because of lack of documents. There is no positive statement made in the order that the Assessing Officer has found the Form F declarations to be untrue. There is no clarity on this aspect. The Tribunal has considered certain circumstances which according to the Tribunal disprove the claim of stock transfer or consignment despatches made by the appellant. It has noted that some of the consignments were sold in the same quantity in which they were sent either on the same day or on the next day. It is observed that in some cases bills were raised before the consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stage, it must be made clear that the appellant has been shown enough latitude. The appellant has consistently sought for time. The Assessing Officer and the Appellate Assistant Commissioner were good enough to give the appellant time to submit documents but this cannot go on in perpetuity. On remand of this matter, the appellant will have to cooperate with the Assessing Officer.No procrastination should be allowed. It needs to be made clear that this Authority has not expressed any opinion on the merits of the case. Nothing said in this order should be treated as expression of opinion on the merits of the appellant's claim. The Assessing Officer shall examine the matter independently after perusing the documents in depth after remand. Hence the following order: The impugned order dated 19.10.2012 is set aside. The matter is remanded to the Assessing Officer. The Assessing Officer shall consider all the documents filed by the appellant. He shall find out after making such inquiry as he deems necessary whether Form 'F' declarations are true or not and shall record a finding one way or the other. If the appellant wants to furnish any document(s) it may be permitted to do so. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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