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TMI Blog1968 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... losing its gross turnover on account of inter-State sales as follows:- Quarter ending Turnovers Rs. 3006-1959 ... 6,35,160.30 3009-1959 ... 7,88,916.11 31-12-1959 ... 8,09,108.14 3103-1960 ... 10,11,550.11 32,44,734.66 The dealer was served with a notice to produce its account books in support of the returns submitted by it. The dealer's representative appeared on 31st October, 1960, before the assessing authority but the examination could not be finalised on that date. The case was adjourned to 23rd November, 1960. On that date, the dealer filed an application for time. The case was adjourned several times. Finally, on 10th May, 1961, it was taken up when the dealer appeared and produced its account books for the year 1958-59 in another case for which the date was also fixed in respect of this period, but it did not produce the account books for the year 1959-60, the period in question. It was stated by the dealer's representative that the account books were in audit. The timepetition was rejected and separate assessments were passed in the two se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the declarations and certificates." 5. The dealer went up in revision before the Board under section 31 of the Bihar Act (19 of 1959). The Board has dismissed the revision holding on the basis of two decisions of the Madras High Court in Deputy Commissioner (Commercial Taxes) v. Parekutti Hajee Sons[1962] 13 S.T.C. 680. and Deputy Commissioner of Commercial Taxes v. Manohar Brothers[1962] 13 S.T.C. 686., that non-observance of the rules by the assessee in the matter of production of declarations in Form C and the certificates in Form D will inevitably deprive it of the benefit of concessional tax under section 8(1) of the Central Act. Reading the order of the Board passed in revision, as a whole, it is clear that it also rejected the argument put forward on behalf of the assessee that opportunity ought to have been given and ought to be given to it for production of the declarations and the certificates even after the passing of the assessment order either by the Deputy Commissioner or by the Board not only by taking the view that the Deputy Commissioner or the Board had no such power but also on the ground that no case had been made out for giving such fresh opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or commerce- (a) sells to the Government any goods; or (b) sells to a registered dealer other than the Government goods of the description referred to in sub-section (3); shall be liable to pay tax under this Act, which shall be one per cent. of his turnover." But the liability to the Central tax under the said provision of law at one per cent. of his turnover in respect of the sales enumerated in clauses (a) and (b) of section 8(1) is conditioned upon the fulfilment of the requirement under section 8(4) which provides: "8.(4) The provisions of subsection (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner- (a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or (b) if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government." The thirteenth section of the Central Act confers the rule- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the return only if the period has been fixed by the notice issued under the proviso to sub-section (1) and not where the registered dealer is required to furnish, ordinarily and generally as is the case, voluntary returns within such period as may be prescribed. The rules framed under the Bihar Act are called the Bihar Sales Tax Rules, 1959. Rule 10 of these Rules requires every registered dealer, unless otherwise required under the proviso to sub-section (1) of section 14, to furnish to the prescribed authority quarterly returns and also an annual return in Form XII. Sub-rule (2) of this rule says that the returns under sub-rule (1) have to be filed within one calendar month of the expiry of the period to which the returns relate. In other words, the quarterly returns or the annual return, as the case may be, have got to be filed within a fixed period of time, i.e., one calendar month of the expiry of the quarter or the year. That being so, it is manifest that the requirements of rules 9(2)(a) and 9-B(3)(a) of the Central Sales Tax (Bihar) Rules, 1957, for attachment of the declarations and the certificates with the returns impose a time-limit or fix the period within which su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der No. C.S.T. 38/61-9808, dated the 28th July, 1961, taking note of delays in assessees' obtaining the required declarations and that they should be given reasonable opportunity for submitting the C and D Forms before the actual completion of the assessment. Although in July, 1961, the issuing of such a circular was against the requirement of the Central Sales Tax (Bihar) Rules, on a correct position of law as discussed by us, the instruction was quite reasonable and fair. It may also be added that that rule now stands amended retrospectively with effect from the 4th December, 1961. I may only quote one of the amended rules, rule 9(2)(a), which now reads as follows: "9. (2)(a) A registered dealer who claims to have made a sale to another registered dealer shall, in respect of such claim, attach to his return in Form I the portion marked 'original' of the declaration received by him from the purchasing dealer or shall submit the said declaration at any time before final assessment, if the assessing authority so permits: * * * * Explanation: For the purposes of this clause, the expression 'final assessment' shall be deemed to include any fresh assessment made by the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the view taken by a learned single Judge of the Allahabad High Court in Murli Dhar Dharampal Daresi v. The Sales Tax Officer, Agra[1965] 16 S.T.C. 21., following the Full Bench decision of the Kerala High Court. The Kerala decision has been upheld by the Supreme Court in Sales Tax Officer, Ponkunnam v. K.I. Abraham[1967] 20 S.T.C. 367. After the Full Bench decision of the Kerala High Court, the Madras High Court has also revised its opinion and fallen in line with the view expressed by the Kerala High Court, in two decisions in The Tirukoilur Oil Mills v. The State of Madras[1967] 20 S.T.C. 388. and Gordon Woodroffe and Company (Madras) Private Ltd. v. The State of Madras[1968] 21 S.T.C. 120. In the Kerala case which went up to the Supreme Court, rule 6 of the Central Sales Tax (Kerala) Rules, 1957, required the dealer to submit a return of all his transactions in Form II together with the connected declaration forms so as to reach the assessing authority on or before the 20th of each month showing the turnover for the preceding month. To this requirement of the main sub-rule (1) of rule 6, a proviso was inserted by a notification dated the 3rd January, 1958; but the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Kerala Rules did not fall for consideration of the Supreme Court. But, on a parity of reason, we do not find any escape from the position that the time-limit fixed under the Bihar Rules in the garb of prescribing the manner of filing the declarations and certificates along with the returns is not valid. The argument of the learned Additional Government Pleader to the contrary is not sound and must be rejected. The Madras High Court in the later cases referred to above have taken the identical view under similar circumstances. 15.. On a careful consideration of the matter, therefore, we are of the opinion that the assessee, undoubtedly, could be and ought to have been given an opportunity to furnish to the assessing authority the declarations and certificates in the prescribed forms after the filing of the returns and before the passing of the assessment order. It could also be given an opportunity to furnish them even after the passing of the order if the appellate authority or the revisional authority could be satisfied that sufficient cause had been made out for giving such an opportunity. The difficulty, however, in the way of the assessee in this case is that whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gives the declaration or the certificate. It is no doubt true that at one place in its order the Board observed that it was unnecessary to go into the question whether the assessee had sufficient cause for non-compliance with the prescribed rules in view of the decisions of the Madras High Court, which, as we have said above with respect, are not good laws. In the alternative, reading the order of the Board as a whole, it is clear to us that it did consider as to whether this was a case where fresh opportunities should have been and could be given either by the Deputy Commissioner or by the Board for production of the required certificates and declarations in the case. It did not feel satisfied to say so. In our opinion, there is no error of law in this regard in the order of the Board and, therefore, the last part of the question which we have framed has got to be answered against the assessee. As a matter of law, we cannot hold that, on the facts and in the circumstances of this case, the assessee ought to have been given an opportunity to furnish to the assessing authority declarations and certificates in the prescribed forms after the passing of the assessment order in question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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