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TMI Blog1978 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... 191.77 through transfer of documents of title to the goods while the same were still in transit. The assessee, however, did not produce the declarations in form C and the certificates in form E-1 before the assessment was completed in spite of the requirement to so produce before the assessing officer. For the year, it had also shown inter-State sale in respect of Rs. 885.55 and had paid concessional rate of tax at 3 per cent, though the declaration in form C was not produced to support the claim for concessional rate. The Sales Tax Officer, in the circumstances, raised a demand on the turnover of Rs. 18,191.77 and assessed the turnover of Rs. 885.55 at the usual rate rejecting the claim for being assessed at the concessional rate. For the year 1970-71, the assessee had effected inter-State sale to the tune of Rs. 10,169.04 and had supported the transactions by declarations in form C. It, however, claimed exemption under section 6(2)(b) of the Central Sales Tax Act in respect of a turnover of Rs. 85,416.52. In spite of opportunity being given by the assessing officer, appropriate declarations in form C were not produced and, therefore, the Sales Tax Officer disallowed the claim and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority, I am of the view that the first appellate authority was justified in not accepting the form filed before him. In short, I hold that the assessing officer in the circumstances of the case was justified in not allowing the claim of exemption as claimed by the appellant ........" 5.. Mr. Bhatacharya, for the assessee, contends, relying on a decision of the Calcutta High Court in the case of Mohatta Brothers v. Additional Member, Board of Revenue, West Bengal[1975] 36 S.T.C. 582., that the assessee was entitled as of right to produce the forms in question before the first appellate authority, and the forums below have gone wrong in sustaining the assessment. In the Calcutta case(1), the Commercial Tax Officer had fixed the hearing of the assessment matter to 3rd May, 1960, and had asked the dealer to produce the books of account for the said period. On that day, the case was adjourned to 10th August, 1960, and on 10th August, 1960, the dealer's lawyer appeared and prayed for time as the books of account were not fully adjusted. The case was accordingly adjourned to 18th August, 1960. The dealer's lawyer appeared on the date and again prayed for time on the same gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party to the appeal or requiring the appellate authority to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the Indian Incometax Act, 1922, requiring that 'at the hearing of an appeal against an order of the Income-tax Officer, the Income-tax Officer shall have a right to be heard either in person or by a representative'. In view of the absence of such a provision, it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer ............" This observation of the Supreme Court is indeed not relevant for our purpose. The Supreme Court nowhere said that the stage of first appeal would be considered as a part of the assessment proceeding. We have been referred to certain precedents by Mr. Bhatacharya. In the case of Shirahatti v. Commercial Tax Officer[1967] 19 S.T.C. 306., a Bench of the Mysore High Court was considering the scope of rule 6 of the Central Sales Tax (Mysore) Rules, 1957, where a proviso to the following effect arose: "Provided that in cases of delayed receipt of declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the assessment is made. It is a different matter to contend that what has not been possible before the assessment is made, may be placed for consideration before the appellate authority and the assessment may be asked to be modified. That, however, would not mean that it is open to the assessee to choose whether he would produce the forms either before the assessing officer or the first appellate authority. The contention of Mr. Bhatacharya that the assessee was entitled to produce the same at the first appellate stage must, therefore, be discarded. There is no dispute in any quarter that the first appellate authority was entitled to accept the declaration forms, particularly, when rule 12(7) of the Central Sales Tax Rules was not in existence when the assessments were made. From the documents referred to in the statement of the case, it is clear that the assessee was keen to obtain the declarations and the certificates. In spite of its best of efforts, the same could not be obtained before the assessment was completed. The Tribunal has rightly found that the Sales Tax Officer had given many opportunities to the assessee. In view of the correspondence, there can yet be no dou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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