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TMI Blog2014 (4) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessment in the case of unfructified sales ?" 2. The assessee is a dealer in Soaps and Cosmetics. For the assessment year 1998-99, the assessee claimed unfructified sales on a sum of Rs. 52,23,651/-. The Assessing Officer pointed out that though the assessee had filed Form-A4, they had not filled up the necessary columns particularly Column Nos.2, 3, 5, 6 and 9 in the Form. Further, for the goods returned from 19.04.1999 to 13.05.1999, in most cases, they had filed the claim for refund under Section 4-D of the Tamil Nadu General Sales Tax Act (hereinafter called as the "Act") only on 10.06.1999, after 30 days. Thus, the claim was proposed to be rejected summarily stating that the details omitted to be given by the assessee were essential details necessary to verify correctness of the claim. Column 2 relate to the name and address of the dealers to whom the goods were sold ; Column 3 relate to the date of sale by the dealer who paid the tax ; Column 5 relate to month in which the sale was included ; Column 6 relate to date of return of goods and Column 9 relate to whether the price of goods and tax charges thereon were refund in full and if so date of refund made. The Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to refund. The Tribunal further considered the contention of the assessee with reference to the assessee's contention based on Rule 18 of the TNGST Rules. The Tribunal pointed out that it was no doubt that unfructified sale was not a sale and as such, such sale turnover could not be assessed to tax under the provisions of the Act. At the same time, when the Act provided for specific method by providing Section 4-D on the refund of tax on the unfructified sales, there is the statutory compulsion that the assessee should go by the said provision. It is pointed out that if the specific provision on time limit is not there in the statute, then the assessee could have requested the assessing officer for exclusion of the turnover as a consequence of the assessment, without any time limit for claim of refund, it could have claimed the refund. However, in the wake of the existence of special provision on limitation, taking care of the situation like the one presented before this Court, the assessee had to comply with the mandatory requirements lest the claim for refund could not be granted. The Tribunal further rejected the contention of the assessee that the mere non-liability to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule under:- Schedule Serial Number (1) Name and address of the dealer to whom the goods were sold/despatched under Section 3 (2) Date of sale by the dealer who paid the tax under Section 3 (3) Description of the goods (4) Month in which the sale/purchase were included in the turnover (5) Whether the goods were received back or returned back and if so the date of return (6) Reasons for return of goods (7) Amount of tax paid (8) Whether the price of goods and tax if any charged thereon were refunded in full to the buyer/seller and if so the date of refund made (9) 6. A cursory reading of the provisions of Section 4-D shows the entitlement of the assessee to seek refund of tax on unfructified sale. The proviso as may be seen from the extracted portion however, provides the period of limitation for the claim to be made. Thus, the claim preferred within 30 days of the receipt of the goods returned in accordance with the prescribed manner and subject to the conditions prescribed will be an entertainable claim; where the claim is preferred beyond the time limit prescribed therein, the same would go for rejection; so too, even though the claim is made within 30 days, if it do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sales and since, the same not being there, the assessment was completed rejecting the same. 9. It is a matter of record that the assessee had filed Form A-4 before the First Appellate Authority however, on the premise of belated filing, the same were rejected and not considered for granting the relief. 10. Learned counsel appearing for the assessee submitted that when appeal is considered to be continuation of the assessment proceedings, the decision of the Apex Court in the case of State of Andhra Pradesh Vs. Hyderabad Asbestos Cement Production Ltd., reported in 94 STC 410 would come to the aid of the assessee for granting the relief. Consequently, being a case of non-liability under the provisions of the Act on an unfructified sale, not being a sale, the Tribunal should have considered this aspect to grant the relief. Learned counsel appearing for the assessee submitted that there is no dispute that these are all unfructified sale ; considering the non-liability, the prescription of time limit i.e., 30 days from the date of return of goods under Section 4-D could not be a mandatory condition for compliance. He pointed out that while in the case of sales return, under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form C in the course of appeal proceedings cannot be a matter of course; and could be allowed only when sufficient cause is established by the dealer for not producing them before the Assessing Authority as contemplated under Rule 12(7) of the Act. Thus, while holding that the primary obligation on the part of the dealer is to file statutory forms before the Assessing Authority, his failure to abide by it as prescribed under the Act but produced before the Appellate Authority must be properly explained. 13. As far as the present case is concerned, the assessee does not dispute the fact that at least in certain cases it had failed to file the Form within 30 days of the receipt of the goods returned, and even in cases where the same had been filed within 30 days, it failed to give such details, which are required under law to be given. The assessee does not make a dispute on this aspect that the claim for unfructified sale could be entertained only subject to the assessee satisfying those conditions and the question of refund arises only when the assessee satisfies the assessing authority that in fact, there had been an unfructified sale. 14. As far as furnishing of Form before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not taken the delivery of goods and hence, the dealer had no liability under the provisions of the Act. Conscious of the non-assessability and non-liability under the provisions of the Act, the statute has fixed a time frame within which the claim has to be made. In any event a mere claim that there had been an unfructified sale or sales return, by itself, would not lead to an automatic grant of refund or adjustment in either case. The assessee has to prove the sales return or unfructified sale as the case may be. When the Act prescribes the necessary form to be filed within the time giving necessary details regarding the person to whom the goods were sent, the date of sale, the dealer who paid tax, month in which sale was included, the date on which return of goods were made and the details as to whether the price of goods and tax charges thereon were refunded in full and if so, date of refund made, the assessee has to make the claim before the Assessing Officer in the manner prescribed under the Act. 19. Even in the case of furnishing of C Forms, in the decision reported in 84 STC 1, after referring to the decision of the Apex Court in the case of Commissioner of Income-tax Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may file Form A-4 before the Appellate Authority and the same would be subject to the assessee showing and satisfying sufficient cause and not otherwise. However, where there lies no dispute on the claim of unfructified sale, the claim must necessarily go by the provision of the Act and the Rules. 23. As far as decision in the case of State of Tamil Nadu Vs. English Electric Co. Of India Ltd reported in 84 STC 1 is concerned, this decision does not, in any manner support the case of the assessee. The facts in the reported decision were that on the sales that took place in the course of the assessment year 1981-82, the assessee raised fresh invoices cancelling the original invoices issued during the year 1981-82. The credit invoice issued in the year 1982-83 in respect of the sale cancelled were placed before the Tribunal. The assessee contended that considering the cancellation of the original invoices the said sales could not be considered as turnover relating to the assessment year 1981-82. The Assessing Officer as well as the Appellate Assistant Commissioner held that the claim was barred by limitation. The Sales Tax Appellate Tribunal held that since the assessee had shown r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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