2015 (10) TMI 209 - HC - VAT and Sales Tax

Refusal of authorities to issue Form F - assessing officer deeming subject sales in the course of exports which are duly covered by form H between the branch office at Sahibabad and the head office at Mumbai to be inter-State sales - validity of section 6A - Held that - All that the assessing officer has done by his notice dated September 14, 2013 is to call upon the petitioner to submit information and has furnished an opportunity of a personal hearing. Undoubtedly, during the course of the assessment proceedings, all the submissions which have been made by the petitioner in these proceedings, can be made before and considered by the assessing authority. The petitioner essentially seeks a direction to the assessing officer in regard to the manner in which he must form a view in the course of the assessment proceedings. The assessing officer, as a creature of statute, is bound to enforce the provisions of the Central Sales Tax Act and is governed by the binding precedents of the Supreme Court on the subject. Consequently, at this stage, it would not be appropriate or proper for the court to entertain the petition. - petition is clearly premature and it would not be appropriate or proper for the court to entertain this petition. In the circumstances, at this stage, it is not necessary to consider the constitutional validity of the provisions of section 6A of the Act. - Appeal disposed of.

Issues:
1. Interpretation of Section 5 of the Central Sales Tax Act, 1956 regarding sales in the course of export.
2. Challenge to the validity of Section 6A of the Act.
3. Requirement of form F for export transactions.
4. Discretion of assessing officer in absence of form F.
5. Prematurity of the petition before completion of assessment proceedings.

Analysis:

1. Interpretation of Section 5:
The petitioner, engaged in the export of frozen buffalo meat, faced a notice for disclosure of information for the assessment year 2009-10. The issue arose regarding the application of Section 5 of the Act, which defines when a sale or purchase of goods is said to take place in the course of export. The petitioner sought relief to prevent the assessing officer from deeming certain sales as inter-State sales due to the unavailability of form F. The petitioner relied on the provisions of Section 5 to support its position.

2. Challenge to the Validity of Section 6A:
The petitioner also challenged the validity of Section 6A of the Act, introduced in 2002, which deals with the burden of proof in cases of transfer of goods claimed otherwise than by way of sale. The petitioner questioned the constitutional validity of this section in the context of its export transactions and the refusal of Maharashtra VAT authorities to issue form F, which was deemed mandatory by the assessing officer.

3. Requirement of Form F:
The petitioner highlighted the necessity of form F for export transactions and the complications arising from the refusal of the Maharashtra VAT authorities to issue the form. The petitioner argued that this refusal should not impact the assessment of its transactions and should not lead to the deeming of sales as inter-State sales without proper consideration of the circumstances.

4. Discretion of Assessing Officer:
The petitioner referred to a Supreme Court judgment in Ambica Steels Ltd. v. State of U. P. regarding the discretion of the assessing officer in cases where form F is not issued due to reasons beyond the taxpayer's control. The petitioner contended that the assessing officer should consider the transactions independently, as indicated in the judgment, rather than solely relying on the absence of form F.

5. Prematurity of the Petition:
The High Court declined to entertain the petition at that stage, emphasizing that the assessment proceedings for the relevant year were still pending. The Court noted that the assessing officer had only called for information and a personal hearing, and all submissions could be made during the assessment process. The Court deemed the petition premature and directed the petitioner to present its arguments before the assessing officer for a decision in accordance with the law.

In conclusion, the High Court dismissed the petition as premature, advising the petitioner to address its concerns during the assessment proceedings and leaving open the opportunity to challenge the constitutional validity of Section 6A before the assessing officer. The Court emphasized the assessing officer's obligation to follow the provisions of the Act and relevant legal precedents in making determinations during the assessment process.

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