9911796707
TMI Blog1986 (7) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... has resulted in failure of justice as the petitioner has not been granted exemption, vide registration certificate (annexure-P1) issued by the Industrial Department to the petitioner as a small-scale industry for the period under dispute, i.e., 1st April, 1978, to 31st March, 1979, nor has he been properly assessed under the Central Sales Tax Act for the inter-State trade as for such inter-State sales he ought to have been assessed separately under section 18(4)(d) of the M.P. General Sales Tax Act, 2.. According to the petitioner, which is a partnership firm, carries on business of manufacturing and sale of ayurvedic medicines at Indore, is duly registered as a dealer under the provisions of the M.P. General Sales Tax Act as also the Central Sales Tax Act. The petition relates to the assessment of the petitioner-firm for the period 1st April, 1978, to 31st March, 1979. The petitioner-firm has been registered with the Industries Department as a smallscale industry, vide annexure-P1, on the basis of a notification dated 25th November, 1969, issued in exercise of the powers conferred by section 12 of the M.P. General Sales Tax Act, 1958, whereby the State Government has exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has been that even the ex Parte assessment proceedings being quasi-judicial, have to be completed in accordance with law as respondent No. 3 was duty-bound to decide and determine the tax liability correctly. Further, according to the petitioner, despite there being material available with respondent No. 3 in the form of account books and documents which were seized by the Flying Squad in which entries regarding inter-State sales were written as also the material regarding the sale of ayurvedic drugs for which the petitioner was granted exemption from sales tax, he has ignored and failed to consider the same without carefully going through the same and has thus failed to determine the inter-State sales as also sales which were exempt from tax and thus he has acted contrary to the mandatory provisions of the Sales Tax Act with the result that the petitioner has been heavily taxed illegally. 5.. The petitioner against the order of respondent No. 3 filed revision petition under section 39(1) of the said Act before the Deputy Commissioner, Sales Tax, Indore (respondent No. 2), as per annexure-P4 enclosing therewith certain papers and documents and contended in the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been made under section 18(4)(d) of the said Act. 9.. Further, according to the respondents, as the petitioner in support of his claim for deduction of inter-State sales or sales under the notification, annexure-P2, did not file any documents, declaration and C forms, etc., the petitioner cannot make a grievance that the best judgment assessment is not proper. They have also denied that the assessing authority had any bias or mala fide intention against the petitioner. Therefore, there being no material nor any C forms on record to prove that any sale made by the petitioner came within the purview of inter-State sale and the petitioner having failed to submit appendix in forms I, II and III, the assessing authority was quite justified in treating the sales as intrastate sales and not allowing any exemption therein as provided in the notification. Therefore, as the burden lay upon the assessee to prove that the said sales were inter-State sales, in absence of proof thereof no blame can be put up upon the assessing authority. It is further contended on behalf of the respondents that even before the revisional authority the petitioner had merely made a mention of the figure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of best judgment assessment lie had a legal obligation to go through the same. He further submitted that the inter-State sales entered into by the petitioner during that period had to be considered separately under the Central Sales Tax Act and he ought to have considered the fact that the petitioner on the basis of C forms as also for the sales under declaration which were exempted from levy of sales tax under the notification, annexure-P2, was bound to consider the same legally and he could not mix up in fixing the liability of the petitioner under the M.P. General Sales Tax Act as also under the Central Sales Tax Act by one and the same order. 12.. Further, according to the learned counsel for the petitioner, the assessing authority had knowledge that the petitioner-firm had effected inter-State sales on the basis of which the petitioner-firm was also assessed earlier for the period 10th May, 1976, to 31st March, 1977, and for the period 1st April, 1977, to 31st March, 1978, vide orders dated 25th September, 1981, and 8th June, 1981, about which the learned Government Advocate did not dispute. He further submitted that the notification, exhibit-P2, was amended by a notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish along with the returns a statement in the form shown in appendix-II showing the particulars of his sales effected against the aforesaid declaration or at any time before assessment. Thus, because of the extension of period for exemption, coupled with the fact that the dealer could furnish the statement as mentioned in column 4(4)(a) at any time before assessment, the assessing authority was bound to consider these amendments and, therefore, before passing the impugned order, annexure-P3, the assessing authority was bound to take these amendments into consideration which obviously it has failed to notice. Therefore, the exemption already granted to the petitioner-firm having been already extended up to 31st March, 1979, by the said amendment, the assessing authority has committed an illegality in taxing the petitioner on those sales for which he was entitled to the exemption. 15.. It is no doubt true that the petitioner-firm as per annexure-P2 normally ought to have produced the certificate of registration referred to in column (1) before the assessing authority at the time of assessment and also should have furnished the statement along with the returns as contemplated by co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liability of sales tax in respect of inter-State sales in absence of the C forms it ought to have given notice to the petitioner before passing the assessment order calling upon him to furnish evidence regarding C form, because as held in the decision reported in 1981 JLJ 168 (MP) (Commissioner of Sales Tax v. Rajjulal Motilal, Guna) production of C form under section 6(2) of the Central Sales Tax Act was not a condition precedent for claiming exemption. 18.. This takes us to the orders passed by the revisional authorities. In the revision memo, annexure-P4, filed by the petitioner before the Deputy Commissioner of Sales Tax (respondent No. 2) he had enclosed therewith form No. 27 in duplicate, grounds of revision in duplicate, demand notice, assessment order form and order of assessment in original, power of attorney, stay application and statement of trading account and tax liability. In the statement of case the petitioner has mentioned that the petitioner-firm has effected mostly sales on appendix and no liability of tax arises. It has also been stated therein that as the petitioner-firm is engaged in manufacture and sale of ayurvedic medicines, for failure to grant exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax v. Dinesh Kumar Pradeep Kumar [1975] 35 STC 46 (MP) [FB]; [1975] 8 VKN 10, Bharat Engineering and Foundry Works v. State of M.P. [1984] 57 STC 296 (MP); [1982] 15 VKN 196, Ramgopal Nathuram Bhutra v. Commissioner of Sales Tax (1984) 10 STL 38 (MP), Jagdish Prasad Pooranchand v. Commissioner of Sales Tax, M.P., Indore [1985] 58 STC 47 (MP), Commissioner of Sales Tax, M.P. v. Imphalsha Manufacturing Co.; Indore [1974] 33 STC 263 (MP), Raj Brothers Agencies v. Board of Revenue [1972] 30 STC 410 (Mad.), Board of Revenue, Madras v. Raj Brothers Agencies [1973] 31 STC 434 (SC) which arose out of Raj Brothers Agencies v. Board of Revenue [1972] 30 STC 410 (Mad.), State of Tamil Nadu v. Arulmurugan and Company [1982] 51 STC 381 (Mad.) [FB] and contended that it has been the consistent view of this Court and several other High Courts that the scope of revision is not restricted and rule 60 of the M.P. General Sales Tax Rules, 1959, makes it obligatory to issue notice before passing any such order. 23.. The learned counsel for the petitioner, therefore, contended that the impugned orders deserve to be set aside and the case be remanded to respondent No. 1 to decide the suo motu revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, no doubt, has great force and we do not at all mean to suggest that if an assessee is at fault certainly he is not entitled to be shown any indulgence. 25.. But the facts of the present case are somewhat different. In the present case the assessing authority has passed the order of assessment on the basis of the documents seized from the possession of the petitioner by the Flying Squad and has also taken those into consideration, but not properly and in accordance with law. If the assessing authority felt that the petitioner was not entitled for exemption for the relevant assessment period as per annexure-P2 or that he wanted to tax him for the inter-State sales by the same assessment, at least for that clarification he ought to have given an opportunity to the petitioner. Similarly even before the revisional authorities the petitioner had submitted the necessary enclosures, which ought to have been taken into consideration by the revisional authorities while exercising their jurisdiction. But, it appears, that they have only laid stress upon the fact that the petitioner was given more than sufficient opportunity, but they have failed to consider this fact that the legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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