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TMI Blog2023 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ad dismissed the writ petition by stating the correctness of Form F cannot be determined under Article 226 of the Constitution of India as the scope for interference under Article 226 was limited with wider powers. 4. It is submitted that the petitioner may be asked to file a rectification application under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 (herein after referred to as TN VAT Act) as made applicable to assessment under provisions of the Central Sales Tax Act, 1956, (hereinafter referred to as CST Act). 5. The learned Government Advocate for the respondent has placed reliance on the two other decisions of this Court dated 22.09.2022 in W.P.No.36116 of 2003 and another order dated 09.01.2023 in W.A.No.2659 of 2022, wherein, the Hon'ble Division Bench had also directed the Assessing Officer to decide the correctness of the claim of transfer under Section 6A of the CST Act. 6. The learned Government Advocate for the respondent submitted that at the time of the admission of this writ petition, the petitioner had merely stated that the minutes of the hearing that was transmitted to the petitioner after the order was passed did not reflect the submission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain fact shall be presumed - or shall be or deemed to have taken place, as the case may be. It is not possible to agree that the word "deemed" in sub-section (2) of Section 6-A can be understood as creating a conclusive presumption nor is it possible to agree that the fact "deemed" is final and conclusive. Section 6-A merely states a rule of evidence. It says that where a dealer claims that certain goods have been moved from one State to another and that such movement has occasioned otherwise than as a result of sale, the burden of proving the same lies upon him. Besides creating the said rule of evidence, the section also sets out how the said burden can be discharged. It can be discharged by producing Form 'F' and on the particulars stated in the said Form being found true on being enquired into by the assessing officer. From this it does not follow that once an order is made accepting Form 'F' as true, it is not subject to the power of reopening or revision contained in Sections 16 and 32 of the Tamil Nadu General Sales Tax Act read with Section 9(2) of the Central Sales Tax Act. After all, Section 6-A is also one of the provisions in this Act. There is no reason to elevate it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orissa, Izhar Ahmad Khan vs.Union of India, Sodhi Transport Company vs. State of U.P. and several others, this Court by a judgment dated 20.02.1997 held: (a)Section 6-A does not create conclusive presumption as contended on behalf of the assessee. (b)An order of the assessing authority accepting Form F, whether passed during the assessment or at any point earlier thereto, forms part and parcel of the order of assessment. (c) Its amendability to the power of reopening and revision depends upon the provisions of the sales tax enactments concerned by virtue of the operation of Section 9(2) of the Central Act. (d)It is not possible to accept that an order under Section 6-A(2) has an independent existence. (e) An order refusing to accept Form F may or may not be appealable independently depending upon the provisions of the State Sales Tax enactments, but it is certainly capable of being questioned if an appeal is preferred against the order of assessment. (f) If orders accepting Form F are sought to be reopened, it can be done as part of reopening of assessment or may be done indepndently, which would depend upon the language of the relevant provisions of the State Acts conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook at the matter would not confer any jurisdiction upon him to get the proceedings reopened. Discovery of a new material although may be a ground but that itself may not be a ground for reopening the proceedings unless and until it is found that by reason of such discovery, a jurisdictional error has been committed. In other words, when an order passed in terms of subsection (2) of Section 6A is found to be illegal or void ab initio or otherwise voidable, the assessing authority derives jurisdiction to direct reopening of the proceedings and not otherwise" 13. After the above judgment of the Hon'ble Supreme Court, section 6A of the CST Act, was amended by Sub-Section(3) to Section 6A of the CST Act, was inserted vide Finance Act, 2014 of 2010. Sub-Section(3) to Section 6A of the CST Act reads as under:- "Nothing contained in sub-section (2) shall preclude reassessment by the assessing authority on the ground of discovery of new facts or revision by a higher authority on the ground that the findings of the assessing authority are contrary to law, and such reassessment or revision may be done in accordance with the provisions of general sales tax law of the State." 14. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and conjecture. There were no material that was available on the date when a revision notice dated 30.12.2021, based on which the assessment could be re-opened. In fact, the notice itself calls upon the petitioner to furnish the purchase orders/stock transfer note received from other branches with documentary evidence for the value of stock transfer for the aforesaid value. If there were no purchase orders, questioning of furnishing non existing purchase order also does not arise. 19. The petitioner has also replied to the same which was followed by a notice dated 30.12.2021 and another notice dated 20.04.2022. 20. In the reply to notice dated 20.04.2022, the petitioner has furnished all the details and has also admitted that one of the cars which was stock transferred was sold on 09.05.2017 and therefore, the petitioner has also paid Inter-State Sales of Rs. 51.071.02. at 2% CST against Form-C. 21. In absence of jurisdictional facts available with the assessing authority or in absence of fraud in which case assessment is to be declared as void ab initio, question of invoking Section 27 of the CST Act to reopen an assessment that was completed earlier on 08.04.2019 for the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual transaction and then decide whether it constituted an interstate sale exigible to tax under the provisions of the Act"
25. The petitioner has also showed that ten of these cars were given to its own employees and were later transferred to them on written down value after use. Thus, there is no scope for interfering inter-state sale. At best, there could be first sale in the State of Haryana where ten of the cars which were stock transferred were later sold to the petitioners' own employees after use.
26. Needless to state, before proceeding to reopen the assessment, it was incumbent on the part of the respondent to first call upon the petitioner to furnish the details and thereafter issue a notice and if the reply of the petitioner was found not satisfactory, the respondent should have issued a notice under Section 27 and thereafter proceeded to pass assessment order.
27. In the light of the above discussion, the Impugned Orders are unsustainable. Therefore, the Impugned Order is liable to be quashed.
28. The writ petitions stand allowed with the above observations and directions. No cost. Consequently, connected miscellaneous petitions are closed. X X X X Extracts X X X X X X X X Extracts X X X X
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