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2019 (1) TMI 898 - AAAR - VAT and Sales TaxNon-filing of Consignment dispatches - over-statement of inter-State sales - Section 6A of the CST Act - declaration of Form-F - rejection of turnover figures accounted for and reported in Form-I - levy of tax under CST - levy of penalty. Held that - The appellant should have placed all the documents before the Assessing Officer promptly. But it appears that in the interest of justice, the appellant was given time to produce documents and the Appellate Assistant Commissioner in its order dated 18.08.2004 has stated that the appellant did submit documents. He has discussed all the documents in great detail and passed a reasoned order. It was, therefore, necessary for the Tribunal to discuss those documents and give a finding whether those documents disclose the required details or not. It is possible that the documents in a particular format may not have been produced but if the details can be gathered from some other documents like consignment agreements, Form F declarations, sale pattials etc. which according to the Appellate Assistant Commissioner have been produced, they may, perhaps, serve the purpose. While the Tribunal states that consignment transfers are not reflected in the books of accounts, Counsel for the appellant has contended that this is a wrong statement. The book of accounts and the annual returns do disclose the turnover regarding consignment transfers. This aspect needs to be looked into. The burden of proving that the movement of goods was occasioned not by reason of sale is on the dealer and to discharge this burden he must furnish to the assessing authority a declaration duly filled by the principal officer of the other place of business of the dealer along with the evidence of despatch of such goods. The assessing authority to whom such a declaration is furnished has to then make an enquiry to find out whether particulars contained in the declaration furnished by the dealer are true. If upon making such an enquiry, the dealer is satisfied that there is no inter-State sale, he may at the time of, or at any time before the assessment make an order to that effect and the movement of the goods to which such declaration relates shall then be deemed for the purpose of the CST Act to have been occasioned otherwise than as a result of sale. Such order can be passed before the assessment or along with the assessment. In the event, the dealer fails to furnish such declaration by reason of legal fiction such movement of goods would be deemed for all purposes of the CST Act to have been occasioned as a result of sale. After receipt of Form F declaration, it is the duty of the Assessing Officer to verify and satisfy himself that the particulars contained in the declaration furnished by the dealer are true. During this enquiry, it is open to the Assessing Officer to require the dealer to produce all relevant documents or other papers or materials which are germane or relevant to find whether the particulars contained in Form F declaration are true. There are no hard and fast rules or rigid formulas which the Assessing Officer can follow while deciding the claim of stock transfer. The Assessing Officer will have to consider all the documents such as consignment agreements, sale pattials, Form F declarations and the attendant circumstances and come to a conclusion whether the claim of stock transfer is genuine or not. If almost in all transactions the consignments are found to have been sold in the same quantity in which they were sent on the same day or on the next day, it may be a pointer to inter-State sale. If regularly the goods are not offloaded at the agent s premises or directly sent to the buyer that could be another pointer to inter-State sale because such repeated transactions cannot be described as a co-incidence. But one circumstance by itself may not be sufficient. At the cost of repetition, it must be stated that the Assessing Officer has to take an overall view of the matter and draw his conclusion. The Appellate Assistant Commissioner in his order dated 18.08.2004 has referred to number of documents furnished by the appellant. The Tribunal, in the impugned order, has, however, not discussed them but come to the conclusion that the documents were not so furnished. The record does not show that the Assessing Officer has conducted any enquiry to find out whether Form F declarations are true or not. In the circumstances, in the peculiar facts of this case the only course left to this Authority is to remand the matter not to the Tribunal but to the Assessing Officer who will be better equipped to go through all the documents and to examine whether the appellant s claim is genuine or not. The matter is remanded to the Assessing Officer. The Assessing Officer shall consider all the documents filed by the appellant - appeal allowed by way of remand.
Issues Involved:
1. Non-reporting of consignment despatches under the CST Act. 2. Discrepancies in reported inter-State sales. 3. Rejection of consignment sales exemption claim. 4. Levy of penalty for alleged suppression of inter-State sales. 5. Assessment of taxable turnover. 6. Adequacy and verification of documentation supporting consignment sales. 7. Tribunal's failure to consider all submitted documents. 8. Applicability and verification of Form 'F' declarations. Detailed Analysis: 1. Non-reporting of Consignment Despatches under the CST Act: The Assessing Officer found that the appellant had not reported consignment despatches as required under the CST Act. Despite filing several supporting documents like consignment sales statements, consignment sale pattials, transport documents, and consignment agreements, the appellant failed to properly report these transactions. 2. Discrepancies in Reported Inter-State Sales: The Assessing Officer noted a discrepancy of ?8,815 in the reported inter-State sales, which was not reconcilable. This discrepancy led to the proposal to treat this turnover as unaccounted sales and subject it to tax. 3. Rejection of Consignment Sales Exemption Claim: The Assessing Officer was not inclined to accept the appellant's claim for exemption on ?2,30,73,474 projected as the value of goods despatched to inter-State consignees. The appellant had not filed necessary forms supporting its inter-State sales of ?55,49,165 reported in Form-I returns. The Assessing Officer observed that the consignment records indicated pre-existing purchase orders, suggesting that ownership of the goods had been transferred, thus disqualifying the consignment sales from exemption. 4. Levy of Penalty for Alleged Suppression of Inter-State Sales: The Assessing Officer proposed to levy a penalty, suspecting that the appellant had suppressed a significant portion of its inter-State sales by camouflaging them as consignment despatches. The appellant's objections to the penalty were overruled, and the penalty was imposed under Section 9(2)(A) of the CST Act and Section 2(3)(b) of the TNGST Act. 5. Assessment of Taxable Turnover: The Assessing Officer determined the taxable turnover for the year 1995-96 as ?2,94,78,112 based on the figures provided by the appellant to the Enforcement Wing. This included ?2,36,39,542 disallowing consignment sales, ?55,30,385 covered by C Forms, and ?3,08,185 not covered by C Forms. 6. Adequacy and Verification of Documentation Supporting Consignment Sales: The Appellate Assistant Commissioner noted that the appellant had produced necessary documents such as consignment agreements, assessment orders from other states, transport documents, and statements of accounts. These documents were deemed sufficient to support the appellant's claim for exemption on consignment sales. However, the Tribunal did not consider these documents adequately and upheld the Assessing Officer's decision. 7. Tribunal's Failure to Consider All Submitted Documents: The Tribunal concurred with the Assessing Officer's observations without discussing the documents submitted by the appellant, which were acknowledged by the Appellate Assistant Commissioner. The Tribunal's order was found to be cryptic and lacking in detailed consideration of the submitted documents. 8. Applicability and Verification of Form 'F' Declarations: The appellant had filed Form 'F' declarations, which are crucial for claiming exemption from inter-State sales tax. The Assessing Officer is required to verify the truthfulness of these declarations. The Supreme Court in Ashok Leyland Ltd versus State of T.N. emphasized the importance of Form 'F' declarations and the necessity for the Assessing Officer to conduct an enquiry to verify their accuracy. The Tribunal failed to address this aspect adequately. Conclusion: The matter was remanded to the Assessing Officer to reconsider all the documents submitted by the appellant and verify the Form 'F' declarations. The Assessing Officer was instructed to conduct an enquiry to determine the truthfulness of the declarations and make a decision based on the findings. The appellant was cautioned against unnecessary delays in submitting documents. The Tribunal's order dated 19.10.2012 was set aside, and the appeal was disposed of with these directions.
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