2013 (4) TMI 463 - HC - VAT and Sales Tax

Interstate sales transaction dispute - notice issued for provisional assessment order calling upon the petitioner to state as to why the sale should not be treated as intrastate sale and also an allegation of suppression relatable to local sale - Held that - The order suffers from total non-application of mind as well as non-consideration of the documents and records produced by the petitioner. The authority states that she had examined the objections and copies of records and therefore the production of records is not in dispute. If the records were taken for consideration, it is not clear as to how the authority can state that no evidence was filed to show the movement of goods from other States to the local purchasers based on the covenant. This statement appears to be a fallacy, as the purchase orders had already been produced showing the origin of goods from Cochin to the purchaser at the State of Tamil Nadu. The next allegation that there was no evidence to show that the purchase orders were transmitted to the Cochin branch was unwarranted as the petitioner has submitted the central excise records to show the delivery of goods after import and the payment of central sales tax at 4% supported by the certificate issued by the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes Department, Ernakulam. Those records have not been taken into consideration by the authority. The allegation to say that the records have been camouflaged to show that they were inter-State sales from Cochin but has not stated as to which document has been camouflaged and in what manner to show the inter-State sales from Cochin is not acceptable. A finding of this nature should be based on analysis of documents and not merely on conjectures and surmises therefore, the said statement of camouflage appears to be a figment of imagination by the authority. The next allegation that the goods had been received by the Coimbatore branch, taken to stock and then delivered to customers in Tamil Nadu done only to avoid the local tax was neither supported by any evidence nor has the officer relied upon any material document. It is, therefore, clear that all these allegations are mere conjectures and surmises on the part of the authority, without analysing the documents produced by the petitioner and what makes the matter worse is that, there are no reasons recorded as to which of the documents are invalid under law and which of the documents have been camouflaged to show the inter-State sales and how those documents are inadmissible in law. The question of suppression, which is also the reason for levy of penalty, appears to be unsupported by any material. The entire order, which runs to about seven pages, contains only the extract of the notice and the reply upto six pages and the last paragraph of the seventh page only deals with the record of findings by the authority, which apparently do not contain any reasons. Keeping in view the principles of natural justice, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. This Court has no hesitation to hold that the first respondent-Commercial Tax Officer has passed a non-speaking order, bereft of reasons, without application of mind to the records produced. The entire findings are in the realm of conjectures and surmises and, therefore, the petitioner was justified in approaching this Court to interfere with the same - matter is remitted to the first respondent-authority for re-consideration of the entire issue - in favour of assessee by way of remand.

Summary

Issues Involved:
1. Classification of sales as interstate or intrastate.
2. Allegations of suppression of local taxes.
3. Validity of the provisional assessment order.
4. Transfer of tax credits between states.

Detailed Analysis:

1. Classification of Sales as Interstate or Intrastate:
The primary issue revolves around whether the sales of Superior Kerosene Oil (SKO) by the petitioner should be classified as interstate or intrastate sales. The petitioner argued that the sales were interstate, supported by documentation such as central excise documents, payment of central sales tax (CST) at 4% in Kerala and Karnataka, and purchase orders indicating interstate transactions. The authority, however, concluded that the sales were intrastate, based on inspections and documents like slips and purchase orders, suggesting that goods were delivered from Coimbatore Depot to buyers in Tamil Nadu, thus camouflaging local sales as interstate sales.

2. Allegations of Suppression of Local Taxes:
The authority alleged that the petitioner suppressed local sales to avoid paying a 25% local tax, presenting evidence from inspections and recovered documents. The petitioner denied these allegations, providing detailed objections and supporting documents, which the authority dismissed without thorough consideration. The court noted that the authority failed to specify which documents supported the finding of suppression and did not adequately address the petitioner's objections and evidence.

3. Validity of the Provisional Assessment Order:
The court found that the provisional assessment order was passed without proper consideration of the documents and objections submitted by the petitioner. The order was deemed non-speaking, lacking detailed reasoning and relying on conjectures and surmises. The court emphasized the need for administrative authorities to record clear and explicit reasons for their decisions, ensuring fairness and preventing arbitrariness.

4. Transfer of Tax Credits Between States:
The petitioner sought writs of mandamus directing the States of Karnataka and Kerala to transfer the taxes paid under the CST Act to the credit of the Tamil Nadu authorities. Given the court's decision to set aside the provisional assessment order and remit the matter for reconsideration, the issue of transferring tax credits was rendered moot at this stage.

Conclusion:
The court set aside the impugned provisional assessment order, remitting the matter to the first respondent for reconsideration. The authority was directed to pass a reasoned order on the entire assessment year, ensuring the petitioner is given an opportunity to present their case. The writ petitions seeking mandamus for transferring tax credits were closed, as the primary issue was yet to be resolved. The court highlighted the importance of detailed reasoning in administrative decisions, aligning with principles of natural justice.