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TMI Blog2008 (4) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... saction as inter-State sale and produced necessary declaration forms, those should have been accepted by the Tribunal? (iii) Whether, on the facts and circumstances of the case, non-acceptance of the declaration forms in "C" and "F" by the Tribunal on the indicated reason is sustainable? Since all the above questions are inter-connected, instead of dealing with each question independently, for the sake of convenience they are taken up together for consideration. These tax revision petitions relate to years 1987-88 to 1991-92 and the questions raised in these cases being almost similar in nature, they are disposed of by this common judgment. The facts which give rise to these tax revision cases are as follows: The petitioner is a company registered under the Indian Companies Act, 1956, having its branches in different States of the country. The company has registered its branch office at Kansbahal in Sundargarh district in the State of Orissa under the Orissa Sales Tax Act, 1947 (hereinafter referred to as, "the OST Act") and also under the Central Sales Tax Act, 1956 (hereinafter referred to as, "the CST Act") bearing registration Nos. RL-II-41 and RL-II-C-22, respectively. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of transfer of machineries, equipments and spare parts to its work sites situated in other States for the purpose of utilisation of the same in execution of works contract accepting the said transactions as inter-State sale as held by assessing officer and first appellate authority. It also produced wanting declarations in forms "C" and "F" against inter-State sale and branch transfer of machineries to its own branch and sister concerns. The declaration forms were not accepted by the learned Tribunal by holding: "Law is well-settled that a dealer has got the right of filing such required forms before this forum, if could not file them before the lower forum. But the dealer is bound to assign reason/reasons as to why those could not be filed before both the lower forum. The petition dated August 7, 2001 disclosed the reason that those forms were received by the dealer after the hearing of the first appeals. But strangely enough no such supporting documentary evidence in respect of such receipt after the hearing of the first appeal is produced before this forum. In absence of such material document/documents, it is not possible on our part to accept such reason assigned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of call. In Sahu Trading Co. [1983] 54 STC 122, this court held that in the scheme of procedure of assessment under the Orissa Sales Tax Act, 1947 the declarations for claiming deductions on account of sales to registered dealers under section 5(2)(A)(a)(ii) of the Act are bound to be produced before the assessment is completed in case the assessee is to be given the deductions he claimed. There is however, no provision in the Act or the Rules to the effect that declarations not furnished at the original stage could not be produced later. There may be cases where for some good reasons deductions though claimed could not be supported by production of declarations at the assessment stage. In the absence of any prohibition, they can be certainly produced as evidence before the first appellate authority and such additional evidence could be received by the first appellate authority. In a suitable case, such declaration can even be produced as additional evidence before the Tribunal in second appeal after complying with the requirement of rule 61 of the Orissa Sales Tax Rules, 1947. It is within the discretion of the appellate authority to accept the evidence produced in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame might be accepted at the stage of first appeal. The appellate authority, however, refused to act on these documents and confirmed the demands for both the years. In the second appeals before the learned Tribunal, the assessee contended that the explanation offered before the first appellate authority should have been accepted and the forms should have been received and consequential benefits should have been given. However, the learned Tribunal did not accept the claim of the assessee and upheld the order of the learned assessing officer. This court after analysing various provisions of the CST Act and Rules framed thereunder and some judicial pronouncements has held that a registered dealer under the CST Act, who failed to produce declaration form in form "C" and in form "E-1" before the assessment was completed, has no right to produce the documents for the first time at the appellate stage and claim the concessional rate of tax. However, if the documents could not be obtained by the assessee in spite of his best efforts before the assessment was completed and the assessee gives before the appellate authority sufficient explanation why the documents could not be produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority has also observed that it was submitted that the assessing officer should have allowed opportunity to the dealer-appellant to produce "C"/"D" forms as prescribed under the Central Sales Tax Act, 1956 in respect of despatch of goods to outside States from the factory at Kansbahal for the purpose of execution of works contract. This shows that only at the stage of hearing of the first appeal, the petitioner changed its stand accepting the view of the department that the transaction in question was in the nature of inter-State sale and therefore wanted to produce declarations in form "C" to avail concessional rate of tax. For this purpose, the dealer requested the first appellate authority to allow it reasonable opportunity for collection and production of declaration forms. Before the learned Tribunal, the petitioner also took the same stand that if the transfer of machineries, equipments and spare parts from its factory to the worksites situated outside the State would be treated as inter-State sales, the declarations in form "C" produced before the learned Tribunal should have been accepted. In this regard, the position of law has been highlighted by the honourab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, if it could not file them before the lower forums. But the dealer is bound to assign reason(s) why those could not be filed before both the lower forums. The learned Tribunal further held that the petition dated August 7, 2001 filed by the dealer disclosed the reason that declaration forms were received by the dealer after hearing of the first appeals was completed. From the order of the learned Tribunal, it is revealed that the reason assigned by the dealer in its petition dated August 7, 2001 was not disputed by the Revenue. In these circumstances, the learned Tribunal is not justified in insisting on production of further documentary evidence in support of the contention of the petitioner that the declaration forms were received by it after the hearing of the first appeal, for the purpose of accepting those declaration forms. For the reasons discussed above, we answer the first and third question in negative and second question in affirmative. We thus answer all the three questions in favour of the dealer and against the Revenue. Since the Tribunal has not examined the correctness of the declaration forms produced before it, now it shall examine the same and for this purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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