1998 (1) TMI 493 - AT - VAT and Sales Tax

Issues Involved:
1. Production and destruction of statutory declaration forms.
2. Validity and admissibility of the unsigned draft assessment order.
3. Legal obligations and responsibilities of the dealer.
4. Application for exemption under amended provisions.
5. Presumption and burden of proof regarding the draft order's authenticity.

Detailed Analysis:

1. Production and Destruction of Statutory Declaration Forms:
The applicant, a company registered under the Bengal Finance (Sales Tax) Act, 1941, produced all statutory evidence, including 868 declarations in form XXIV, before the Commercial Tax Officer (CTO) on November 28, 1972. However, before the CTO could sign the assessment order, he died. Subsequently, a devastating fire destroyed all the documents. The successor officer disallowed the claims due to the absence of the declarations, leading to appeals and revisions by the applicant.

2. Validity and Admissibility of the Unsigned Draft Assessment Order:
The unsigned draft assessment order, allegedly in the handwriting of the deceased CTO, noted the production of the declarations and supported the applicant's claims. The respondents argued that the unsigned order could not be considered a public document under section 35 of the Indian Evidence Act, 1872. The West Bengal Commercial Taxes Tribunal initially found it to be an important material but not a formal directive. The Board later held that the unsigned draft order was inadmissible and could not be used to draw adverse presumptions against the revenue.

3. Legal Obligations and Responsibilities of the Dealer:
The respondents contended that the dealer failed to produce the statutory forms at the time of the first assessment on December 22, 1973, which necessitated the imposition of tax at the full rate. The Tribunal, however, noted that the dealer had produced the documents before the deceased CTO on November 28, 1972, and the failure to produce them later was due to the fire. Therefore, the dealer had fulfilled his legal obligations at the initial stage.

4. Application for Exemption Under Amended Provisions:
The Assistant Commissioner suggested that the dealer should have approached the Commissioner for exemptions under the amended provisions of the Act. However, it was found that the applicant had indeed approached the Commissioner, who declined to intervene because the assessments had already been completed and appeals were pending. This demonstrated that the applicant had attempted to seek relief through the appropriate channels.

5. Presumption and Burden of Proof Regarding the Draft Order's Authenticity:
The Tribunal observed that the unsigned draft order, in the handwriting of the deceased CTO, indicated that the declarations had been examined and found satisfactory. The Board's assertion that the draft order could not be verified was countered by the Tribunal's familiarity with the handwriting. The Tribunal concluded that the draft order created a strong presumption in favor of the applicant, which the revenue failed to rebut.

Conclusion:
The application was allowed, setting aside the revisional order dated August 5, 1996. The assessing officer was directed to allow the claims under section 5(2)(a)(ii) based on the 868 XXIV forms. The request for a stay of the judgment was rejected. The decision emphasized the importance of considering all relevant materials and the unique circumstances that prevented the dealer from reproducing the documents.

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