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TMI Blog2005 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ctification order under section 55), C.S.T. No. 1205/87-88 dated December 18, 1996 and C.S.T. No. 1205/88-89 dated December 12, 1997. In the alternative, it is prayed in W.P. Nos. 6802 to 6805 of 2004 for issuance of writ of mandamus to direct respondents Nos. 5 to 19 to transfer to the credit of the second and third respondents, the taxes paid by the petitioner herein on their sales to the respective State Transport Undertakings pursuant to the assessment for the years 1986-87, 1987-88 and 1988-89 in respect of respondents Nos. 6 to 13, 15 and 16, the assessment for the years 1987-88 and 1988-89 in respect of respondent No. 17, the assessment for the year 1986-87 in respect of respondent Nos. 14 and 18 and the assessment for the year 1987-88 in respect of respondent No. 19. The writ petitions in W.P. Nos. 19223 to 19232 of 2004 are filed, for the relief of issuance of a writ of mandamus to direct respondents Nos. 18, 16, 14, 15, 10, 5, 11, 8, 13 and 6 to transfer to the credit of the second and third respondents herein against Central sales tax demands of the third respondent herein, the taxes paid by the petitioners herein on their sales of vehicles to the respective State Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du assessing authorities to first decide the matter before them. Thereafter, if the orders were against the assessees, they were permitted to file an appeal directly before the Tribunal. If the Tribunal decided against the assessee by holding that the sale of vehicles to the State Road Transport Undertakings of various States were inter-State sale and it was found that those very transactions have also been taxed as intra-State sales under the State sales tax enactment of other States, that would be the stage for considering the advisability of giving appropriate direction if by that time no Central mechanism to meet such situation comes into existence. As per the direction of the Supreme Court in Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152, the order passed by the Tribunal on facts has been carried on to the Supreme Court for the second time. The three-Judge Bench of the Supreme Court in the case of Ashok Leyland Ltd. v. State of Tamil Nadu reported in [2004] 134 STC 473 reversed the finding of the Supreme Court in Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152, by holding that the order of the assessing authority under section 6-A of the Central Act is concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 1986-87. During November, 1990, the assessing authority completed the assessment under the Central Act by accepting the claim of the petitioner that the goods were transferred to the RSOs by way of stock transfer and not by way of sale to other States by accepting form "F" filed by the petitioner. Likewise, for the assessment year 1987-88, on August 28, 1991, by accepting form "F" passed an order treating the transfer of vehicles as branch transfer. Despite such assessment orders having been passed as stated above, the assessing authorities have issued a show cause notice as to why the assessment orders for the assessment years 1986-87 and 1987-88 could not be revised and the stock of vehicles transferred to the regional sales offices so far as the sale relates to the State Transport Undertakings were concerned, should not be taxed as inter-State sales taxable in Tamil Nadu. The petitioner filed objection, inter alia, questioning the jurisdiction of the assessing authority to reopen the assessment on the ground that the issues stood determined in terms of section 6-A of the Central Act relying or on the basis of the declarations made by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. The Supreme Court further observed that the petitioner would be entitled to move this court for ventilating their grievances. As such, the present writ petition is filed before this court. Mr. C. Natarajan, learned Senior Counsel appearing for the petitioner, strenuously contended that both the assessing authority as well as the Tribunal, which confirmed the reassessment orders, did not deal with form "F" declaration, which has been originally inquired into and accepted as true. The exercise of jurisdiction by the assessing authority, which has been confirmed by the Tribunal without a decision on the preliminary jurisdictional fact of the form "F" declaration, vitiates the entire proceedings. The correction pointed out in the form "F " declaration to deny the claim of the assessee is made only at the instance of the assessing authority for the reason that the original form "F" declaration related to number of vehicles transferred each month to different RSOs, whereas in assessments prior to and up to 1987-88 form "F" declarations were furnished by the RSOs on the basis of the number of vehicles received into the RSOs. So, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the question raised in this writ petition is primarily a question of fact and the revising authority as well as the Tribunal, the final fact-finding authority, recorded its categorical finding against the assessee. The correctness of which cannot be gone into by this court under article 226 of the Constitution of India. He further contended that the documents recovered from the place of business of the petitioner clearly indicate that the RSOs are only acting as a conduit, that the other State STUs have directly placed orders on the petitioner. Hence, the movement of goods from Tamil Nadu to other RSO is only an inter-State sale coming within the sweep of section 3(a) of the Central Sales Tax Act. The Additional Advocate-General has pointed out that one of the documents dated December 31, 1990 and the averment contained in the affidavit filed by the Assistant Manager, Sales Tax, of the petitionercompany dated July 14, 1992 before the assessing authority and contended that this document clinches the issue and proved that the sales were only an inter-State, sale rather a pre-determined sale to the RSO at Maharashtra. Hence, all the sales by the petitioner to the other RSOs could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event, if it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale. Such declaration indisputably is to be filed in form F. The said form is to be filled in triplicate. The prescribed authority of the transferee-State supplies the said form. The original of the said form is to be filed with the transferor-State and the duplicate thereof is to be filed before the authorities of the transferee-State whereas the counterfoil is to be preserved by the person where the agent or principal of the place of business of the company is situated. 35.. When the dealer furnishes the original of form F to its assessing authority, an enquiry is required to be held. Such enquiry is held by the assessing authority himself. He may pass an order on such declaration before the assessment or along with the assessment. Once an order in terms of sub-section (2) of section 6-A of the Central Act is passed, the transactions involved therein would go out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, the Supreme Court has held as follows: "In the case at hand it has to be determined whether the sale in question is an inter-State one. If through the means of a legal fiction it is determined that this is not an inter-State sale, then it amounts to a transfer of stock. This finding is made by a statutory authority who has the jurisdiction to do so and there is no provision for appeal. Therefore, the order made by such authority is conclusive in that it cannot be reopened on the basis that there had been a mere error of judgment. It also cannot be reopened under another statute, for examples, the Sales Tax Act of the State concerned, when the order had been made under the Central Act. Section 9(2) of the Act is subject to the other provisions of the Act which would include subsection (2) of section 6-A of the Act. 'Subject to' is an expression whereby limitation is expressed. The order is conclusive for all purposes. It can only be reopened on a small set of grounds such as fraud, misrepresentation, collusion, etc." The Supreme Court further held that there is no presumption when movement of goods has taken place in the course of inter-State sales in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the office of the company situated outside the State." There again the Supreme Court held that the observation made by the Supreme Court in Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152 to the effect that an order passed under sub-section (2) of section 6-A can be the subject-matter of reopening of a proceeding under section 16 of the State Act was not correct. While concluding so, the Supreme Court has added that the conclusion would not mean that even wherein such an order has been obtained by commission of fraud, collusion, misrepresentation or suppression of material facts or giving or furnishing false particulars, the order being vitiated in law would not come within the purview of the aforementioned principle. Discovery of a new material although may be a ground but that itself may not be a ground for reopening the proceedings unless and until it is found that by reason of such discovery, a jurisdictional error has been committed. In other words, when an order passed in terms of sub-section (2) of section 6-A is found to be illegal or void ab initio or otherwise voidable, the assessing authority derives jurisdiction to direct reopening of the proceedings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, I am of the view that the authorities deviated from the guiding principles. On an entire reading of the assessment order and the order of the Tribunal confirming the assessment, it is clear that the authorities have not exercised the jurisdiction and conducted enquiry as enunciated by the Supreme Court in the abovesaid judgment, the essence of which has been extracted above. But certain facts, which are otherwise clinching the issue, have been unearthed by the assessing authorities (referred to at para No. 127 of the Tribunal order), which cannot be lost sight of by this court. Hence, I am of the considered view that the claim of the Revenue cannot be brushed aside in total by following the judgment of the Supreme Court as contended by the counsel for the assessee. The assessing officer has to be given another opportunity to re-do the exercise as per the exposition of law on this subject by the Supreme Court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473. Furthermore, the decision of the Supreme Court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473 was not available when the exercise has been done, i.e., the reassessment and the issuance of not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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