2013 (5) TMI 566 - HC - VAT and Sales Tax

Guilty of willful omission - claim for deduction of sales against prescribed Forms ST-1, furnished by the purchasing dealer in respect of goods found during enquiry by the Assessing Authority, not specified in the Registration Certificate of the purchasing dealer - Held that - A bare perusal of Rule 8 ST-1 Forms are printed under the Authority of the Commissioner and are issued by the Assessing Authority of the purchasing dealer on an application made to him by the purchasing dealer. An application for issuance of forms may also be rejected by the Assessing Officer, if is satisfied that the declaration forms have not been used bonafide or if the conditions in sub-rule (4) of Rule 8 of the Rules are not satisfied. Further, the declarations made in the ST Forms are unequivocal and the purchaser is liable to be subjected to punitive action if the same are found to be untrue. Thus, in the normal course, there would be no reason for the selling dealer to doubt the declaration made by the purchasing dealer, in the Form ST-1. In the present case too, the petitioner has relied upon such Forms and there is no material on record to suggest that the petitioner accepted the ST-1 Forms with the knowledge that the declarations made thereunder by the purchasing dealer were wrong, thus, unable to agree with the view that there was any willful omission on the part of the petitioner in making his return or that the return was made by the petitioner knowing that the particulars in the ST-1 Forms on the strength of which deduction in the taxable turnover was claimed were inaccurate. Thus, the answer to the first question whether the petitioner is guilty of willful omission must be answered in the negative. Admissibility of claim for deduction of sales against prescribed ST-1 Forms furnished by the purchasing dealer, in respect of goods which are not specified in the Registration Certificate of the purchasing dealer - Held that - Third proviso to section 4(2) makes an express provision for collecting tax from the purchaser, in the event goods are purchased by him for the purposes mentioned in Section 4(2)(a)(v) but are not so utilized by him. Thus, whereas in the case of misutilization of goods by the purchaser, the amount of tax payable can be collected from the purchaser, there is no such provision in the Act which enables collection of tax from the purchaser, in the event, he makes a false declaration regarding holding of registration certificate with respect to the goods so purchased. Unable to agree with the contention of the petitioner that the interest of the revenue can be protected by the imposition of penalty for offence of misrepresentation under Section 50(1)(d) of the Act. The provision to take punitive action and impose penalty cannot be equated to collecting the tax payable.Thus, the second question must be answered in the affirmative and the petitioner would be disentitled to reduce his taxable turnover in respect of sale of goods made to a dealer who does not hold a registration certificate in respect of goods purchased by him. Whether the petitioner is liable to pay interest under section 27 of the Act from the date of submission of the return, on the amount of tax assessed under section 23 of the Act? - Held that - Expression tax due as appearing in section 27(1) of the Act has to be read in conjunction with provisions of section 21(3) of the Act and interest under section 27(1) is payable only on the tax due according to the return filed . The tax which is finally assessed becomes due on assessment and if the demand in relation to the same is not satisfied, interest will become payable by virtue of section 27(2) of the Act. The issue whether the petitioner is liable to pay interest on the taxes assessed under Section 23 of the Act from the date of submission of the return is thus covered by the decision of this court in the case of Pure Drinks (New Delhi) Ltd. (2013 (5) TMI 149 - DELHI HIGH COURT) and has to be answered in the negative - impugned order requiring the petitioner to pay interest under section 27(1) is set aside.

Issues Involved:
1. Whether the petitioner is guilty of willful omission.
2. Whether the petitioner is dis-entitled for deduction in respect of sales against prescribed Forms ST-1.
3. Whether the petitioner is liable for imposition of interest under Section 27 of the Delhi Sales Tax Act, 1975.

Issue-wise Detailed Analysis:

1. Willful Omission:
The petitioner was assessed to sales tax for the year 1984-85, and the Assessing Authority raised a demand including interest, on the ground that nine ST-1 Forms submitted were invalid. The invalidity was due to the purchasing dealer not holding a registration certificate for the goods sold. The petitioner appealed, arguing there was no obligation to verify the registration certificate of the purchasing dealer. The Tribunal held that the petitioner should have been vigilant and aware of the invalidity of the ST-1 Forms, thus guilty of willful omission.

However, the court disagreed, noting that the petitioner relied on the declarations made in the ST-1 Forms, which were printed under the authority of the Commissioner and issued by the Assessing Authority. There was no material suggesting the petitioner accepted the forms knowing the declarations were wrong. The court referenced the Supreme Court's decision in J.K. Synthetics v. Commercial Tax Officer, emphasizing that if a dealer furnishes particulars without willful omission, believing them to be correct, they cannot be held guilty of willful omission. Thus, the court concluded that the petitioner was not guilty of willful omission.

2. Dis-entitlement for Deduction:
The court examined whether the petitioner could claim deductions for sales against ST-1 Forms when the purchasing dealer did not hold a registration certificate for the goods. The court noted that under Section 4(2)(a)(v)(B) of the Act, sales to a registered dealer must be of goods specified in the dealer's registration certificate. This condition was not met in the present case. The petitioner argued that the selling dealer should not verify the validity of the forms and relied on the Supreme Court's decision in Radio and Electricals Ltd. However, the court clarified that the selling dealer must verify that the purchasing dealer is registered and holds a certificate for the goods. The court concluded that the petitioner was dis-entitled to reduce his taxable turnover for sales to a dealer without the requisite registration certificate.

3. Imposition of Interest:
The court considered whether interest under Section 27 of the Act was payable on the tax assessed or as returned by the assessee. Section 27(1) mandates interest if a dealer fails to pay the tax due as per Section 21(3), which requires payment of tax according to the return filed. The court referenced the Supreme Court's decision in State of Rajasthan v. Ghasilal, which held that tax is due only when ascertained by the assessee or the assessing authority. The court also cited its decision in M/s Pure Drinks (New Delhi) Limited, concluding that interest under Section 27(1) is payable only on the tax due according to the return filed. Thus, the court held that the petitioner was not liable to pay interest on the tax assessed from the date of submission of the return.

Conclusion:
The court answered the first question in the negative, holding that the petitioner was not guilty of willful omission. The second question was answered in the affirmative, dis-entitling the petitioner from reducing taxable turnover for sales to a dealer without the requisite registration certificate. The third question was answered in the negative, setting aside the imposition of interest under Section 27(1) from the date of submission of the return. The impugned order was partially set aside, and the reference was answered in favor of the petitioner to the extent of interest imposition. There was no order as to costs.

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