9911796707
TMI Blog1986 (9) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... were obtained the garden would be managed by M/s. Duncan Brothers Co. Ltd. who are the agent of Meanglass Tea Co. Ltd. of India. On 22nd July, 1972, the Meanglass Tea Co. Ltd. received permission for sale of the said Putharjhora tea garden from the Reserve Bank of India. Thereafter the conveyance was executed on 20th March, 1973, and the garden was handed over to the petitionerfirm on 31st March, 1975 by M/s. Duncan Brothers Co. Ltd. The case of the petitioners is that the petitioner-firm had no inter-State purchases prior to the registration. The Commercial Tax Officer in charge of the assessment of Meanglass Tea Co. Ltd. excluded from the sales tax registration certificate of the Meanglass Tea Co. Ltd. Putharjhora tea garden during the period between the date of agreement for sale and the date of actual conveyance. No application for registration certificate could be made by the petitioner-firm as the sale of the garden was not complete in absence of a registered conveyance. The conveyance could not be executed and registered as the approval of the Reserve Bank of India for purchase of a sterling garden was not obtained. It was after the approval by the Reserve Bank of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an application for amendment of the registration certificate. By the order dated 9th September, 1977, the amendment was allowed from the date of the said order, i.e., 9th September, 1977, and not from the date of issue of registration certificate, i.e., 17th April, 1974 or from the date of application for registration, i.e., 24th September, 1973. It is alleged that this was done without hearing the petitioner. On 30th September, 1977, a notice was issued by the Commercial Tax Officer initiating penalty proceedings under section 10A of the Central Sales Tax Act, 1956, for unauthorised issue of declaration form. The petitioner by letter dated 24th January, 1978, replied to the said show cause notice and requested the Commercial Tax Officer to give retrospective effect to the registration certificate with effect from 24th September, 1973, the date of the application for registration. On 13th February, 1978, the petitioner came to know that Rs. 25,000 has been imposed as penalty by the Commercial Tax Officer for unauthorised issue of declaration forms and another show cause notice was issued as to why the petitioner-firm should not furnish Rs. 10,000 as security for proper custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer as regards the issuance of the registration certificate must be based on objective factors. The authority must be satisfied that the specified goods are likely to be needed for the purposes of the business of the registered dealer. There is no dispute that the petitioner-firm in its application for registration had specified the goods or classes of the goods to be included in the registration certificate. The registration certificate was granted on 17th April, 1974. The following note has been made in the order sheet: 17-4-74: "It appears that the dealer has effected the first inter-State sale on 14-4-73. No inter-State purchases have been made. Issue R/C u/s 7(3) as the dealer is liable to be registered u/s 7(1) of the C.S.T. Act, 1956." If it is held that by the said endorsement the Commercial Tax Officer in fact rejected the inclusion of the specified goods or classes of goods in the registration certificate as contended by the respondent, such determination has been made without giving any opportunity to the dealer. There should be an objective determination that the goods specified by the dealer in the application for registration are not likely to be needed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake on the part of the respondents in not including the goods or classes of goods specified by the dealer for inclusion in the registration certificate. The court cannot allow any party to take advantage of its own wrong whether it is a private person or State. The respondents by not including the goods or classes of goods specified by the dealer in its application for registration, have seriously prejudiced the petitioner-firm. The subsequent proceedings for imposition of penalty and direction for furnishing security for issuance of declaration forms were consequential to the omission on the part of the registering authority to include those goods. In the case of Textile England Agencies v. Commercial Tax Officer, Lyons Range Ltd. [C.R. No. 355(W) of 1964-Calcutta High Court] D. Basu, J., held that the sales tax authority cannot exclude the item claimed by the dealer for inclusion in the registration certificate. If that was done the original registration certificate should be amended with effect from the date of the registration certificate and not from the date of amendment. The learned Judge also directed that no penalty action should be taken against the dealer. In a simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It must relate back to the date of the original registration certificate. The omission in case is inadvertent. If it is a deliberate omission it would amount to this rejection of the application of the dealer but before such application is rejected the dealer must be given an opportunity of being heard which was not given in this case. It appears from the facts of this case that this omission was inadvertent as subsequently declaration forms (form C) were also issued to the petitioner-firm and the petitioner-firm utilised those declaration forms in the usual course of its business. Before any declaration form is issued, the Commercial Tax Officer has to be satisfied about the bona fide requirement and use of such declaration form. It was therefore evident that at the material time the petitioner-firm had inter-State purchases for which it was necessary to include in the registration certificate the goods or classes of goods specified by the petitioner in the application for registration. That was not done. For the reasons aforesaid this application succeeds. The penalty imposed and the order directing the furnishing of security are set aside and quashed. The respondents are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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