2018 (1) TMI 403 - HC - VAT and Sales Tax

Reassessment - Section 9(2) of the Central Sales Tax Act, 1956 - Rate of tax - inter-state sale - the appellant/writ petitioner produced C Forms from its buyers, and it is on the said basis that the assessment was completed - Section 29 (4) of Uttarakhand VAT Act, 2005 - time limitation - Held that - there is no power with the authorities to reassess, in the facts and circumstances of this case, for the reason that there is no order passed under Sections 25 and 26 of the Act - The fact that in the U.P. Act, there is no reference to Sections 25 and 26 in Section 29 may not, in our view, take away the power of the authorities to carry out the reassessment in the circumstances involved in this case. The provision relating to Section 29(1)(c), which has, in fact, been adverted to in the order of the Commissioner, which is the basis for permitting reassessment would, in our view, endow the authorities to deal with the case at hand. Undoubtedly, the appellant/writ petitioner has been assessed at the rate of 1 per cent. If the appellant/writ petitioner was not entitled to the concessional rate available to the assessees fulfilling the requirements under Section 8 of the Central Sales Tax Act, 1956, the assessees would have been assessed at the rate of 4 per cent, which is the rate, which is higher than the rate at which the appellant/writ petitioner has been assessed. Therefore, we cannot say that there was no power even prior to the amendment to deal with a case like the present case. Therefore, we do not agree with the argument of the learned counsel for the appellant/writ petitioner that the impugned order is bad for the reason that it was beyond his powers. This is not a case where the order passed under Section 29(4) of the Act is bad for the reason that it was passed without giving any opportunity or there being no reason. In the notice, the Commissioner would state that a request has been sent by the Deputy Commissioner to authorize him under Section 29(4) of the Act and the reasons are as have been stated. In fact, there is no reference in this notice, to the notice, which he has already issued acting under Section 29(1) of the Act, namely, Annexure No. 3, dated 20.11.2015. Thereafter, we may notice the actual order, which has been passed under Section 29(4) of the Act - the aspect relating to the C Forms and, finally, the order to do a reassessment under Section 29 of the Act being found justified and appropriate. The Court, therefore, inter alia, took the view that it is not for the Tax Officer to hold an enquiry whether the goods specified in the certificate of registration can be used by him for any of the purposes mentioned in Form C , or that the goods purchased have, in fact, not been used - it is the Sales Tax Authority, who is competent to scrutinize the certificate to find out whether the certificate is genuine. The Assessing Officer will necessarily apply his mind to the various contentions raised by the appellant/writ petitioner in regard to the C Forms and will also decide the matter - petition disposed off.

Issues Involved:
1. Validity of the impugned order dated 15-02-2016.
2. Jurisdiction of the assessing authority under Section 29 of the Uttarakhand VAT Act, 2005.
3. Applicability of Section 9(2) of the Central Sales Tax Act, 1956.
4. Legality of reassessment proceedings based on 'C' Forms.
5. Impact of amendments to Section 29 of the Uttarakhand VAT Act, 2005.
6. Validity of the jurisdictional notice dated 20.11.2015.
7. Applicability of Section 32 of the Uttarakhand VAT Act, 2005.
8. Responsibility of the seller versus the buyer in the context of 'C' Forms.

Detailed Analysis:

1. Validity of the Impugned Order Dated 15-02-2016:
The appellant challenged the impugned order dated 15-02-2016 issued by the Additional Commissioner, Commercial Tax, Haridwar Zone, under Section 29(4) of the Uttarakhand VAT Act, 2005, which was upheld by the learned Single Judge. The court found that the Commissioner had the authority to issue the order for reassessment based on the 'C' Forms submitted by the appellant, which were found to be unverifiable.

2. Jurisdiction of the Assessing Authority Under Section 29 of the Uttarakhand VAT Act, 2005:
The appellant argued that Section 29 is a code by itself and that the learned Single Judge erroneously doubted whether the transactions were Inter-State or Intra-State. The court clarified that the assessment was completed under the Central Sales Tax Act, 1956, and the transactions were indeed Inter-State. The court also noted that the power to reassess under Section 29(4) was validly exercised.

3. Applicability of Section 9(2) of the Central Sales Tax Act, 1956:
The appellant contended that the jurisdictional notice did not reference Section 9(2) of the Central Sales Tax Act, 1956. The court held that the assessment and reassessment powers under Section 9(2) of the Central Sales Tax Act, 1956, are to be exercised using the machinery of the State Act. The court rejected the argument that the assessment must be treated as made exclusively under Section 9(2) of the Central Sales Tax Act, 1956, without reference to Section 25 of the Uttarakhand VAT Act.

4. Legality of Reassessment Proceedings Based on 'C' Forms:
The appellant argued that the 'C' Forms were provided by the buyers and any irregularity should be the buyers' responsibility. The court noted that the 'C' Forms were found to be unverifiable, and the authorities had the power to reassess the transactions at a higher tax rate. The court upheld the reassessment proceedings, stating that the power under Section 29(1)(c) to assess at a rate higher than initially assessed was applicable.

5. Impact of Amendments to Section 29 of the Uttarakhand VAT Act, 2005:
The appellant argued that the amendment to Section 29(1)(dd), which came into effect on 31.03.2016, was not applicable to their case. The court acknowledged the amendment but held that even before the amendment, the authorities had the power to deal with cases involving unverifiable 'C' Forms under Section 29(1)(c).

6. Validity of the Jurisdictional Notice Dated 20.11.2015:
The appellant challenged the jurisdictional notice as it was issued beyond the period of limitation and without reference to Section 9(2) of the Central Sales Tax Act, 1956. The court found that although the initial notice was issued without the required sanction, a subsequent notice (Annexure No. 8) was issued after obtaining the necessary approval from the Commissioner, thus curing any defects in the initial notice.

7. Applicability of Section 32 of the Uttarakhand VAT Act, 2005:
The appellant argued that the reassessment proceedings were barred by limitation under Section 32 of the Act. The court did not delve deeply into this issue, stating that it was beyond the scope of the petition and should be addressed during the reassessment proceedings.

8. Responsibility of the Seller Versus the Buyer in the Context of 'C' Forms:
The appellant contended that the buyers should be held responsible for any irregularities in the 'C' Forms. The court referred to the Supreme Court's decision in State of Madras Vs. Radio & Electricals Ltd., which held that the Sales Tax Authority is competent to scrutinize the certificate to determine its genuineness. The court directed the Assessing Officer to consider the appellant's contentions regarding the 'C' Forms during the reassessment process.

Conclusion:
The court dismissed the appeal, upholding the validity of the impugned order dated 15-02-2016 and the reassessment proceedings initiated under Section 29(4) of the Uttarakhand VAT Act, 2005. The court clarified the jurisdictional and procedural aspects related to the reassessment based on unverifiable 'C' Forms and directed the Assessing Officer to consider the appellant's contentions during the reassessment process.

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