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TMI Blog2009 (10) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the authority that particular items are not included in the entry, therefore, the concessional rate would not be applicable, could not be used as a handle against the petitioner for reopening of the assessment. For the reasons aforesaid, we are of the opinion that the orders of reassessment passed by the assessing officer and confirmed by the revisional authority are bad. The said orders deserve to be and are accordingly quashed. - Writ Petition No. 8482 of 2006 - - - Dated:- 20-10-2009 - GARG R.S. AND JAISWAL P.K. , JJ. ORDER:- The order of the court was made by R.S. GARG J. By this writ petition under articles 226/227 of the Constitution of India, the petitioner, who had sold certain spares for repair of the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in respect of the various transformers and supplied the spares. For purchase of these spares, the Board issued declaration form No. 32 claiming concessional rate of tax on such purchases by the Board as the purchasing dealer. In the tax return filed by the petitioner, the tax was paid at concessional rate and at the time of the assessment, the petitioner produced all the declarations furnished to him by the Board. In the assessment order for the year 2000-01, claim for concessional rate of tax at four per cent and surcharge was accepted vide order dated December 26, 2003, however, on an audit objection relating to rate of tax applicable to such sales the case was directed to be reopened. The petitioner objected to the proceedings and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that even otherwise the liability to pay tax would be on the purchasing dealer if it is found or held that the declaration issued by him was wrong, bad or was contrary to the facts. Shri Vivek Agrawal, the learned Government Advocate for the respondents, on the other hand, submitted that every selling dealer is obliged to look into the legality/validity of the declaration given under form No. 32 and in case he fails in exercise of due diligence and does not verify from the purchasing dealer that such concessional rate is applicable to him then the selling dealer is liable to pay tax because the liability to pay tax is firstly upon the selling dealer. For proper appreciation of the controversy in issue, we have to refer to section 9 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 25 for use by him as raw material or as incidental goods in the manufacture or processing or mining of taxable goods other than coal; or (ii) the tax payable by registered dealer on the sale of any goods specified in Schedule II to another registered dealer holding a recognition certificate under section 25 for use by him as raw material or incidental goods in the mining of coal, for sale by him in the State of Madhya Pradesh or in the course of inter-State trade or commerce or in the course of export out of the territory of India, shall be levied at the concessional rate of two per cent: Provided that when the tax on the sale of such raw material or incidental goods is payable under sub-section (1) at a rate lower than two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asing dealer then such certificate would provide an irrebuttable presumption insofar as the selling dealer is concerned. The Supreme Court further observed that the sales tax authorities would have no jurisdiction to examine such certificate. In view of the Chunni Lal Parshadi Lal [1986] 62 STC 112 (SC), the selling dealer shall not be obliged or bound to go beyond declaration issued in form No. 32. In the said matter, the Supreme Court had further observed that the genuineness of the certificate and the declaration may be examined by the taxing authorities but they would not be entitled to examine the correctness or truthfulness of the statements made therein. The Supreme Court was also of the opinion that the taxing authority may exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly provides that no selling registered dealer shall refuse to accept any declaration or certificate furnished by a purchasing registered dealer in accordance with any provision of the Act or Rules made or any notification issued thereunder. A feeble attempt was made by Shri Vivek Agrawal, the learned Government Advocate for the respondents, to submit that the declaration should be in accordance with the provisions of the Act or the Rules made or any notification issued thereunder and, therefore, the provision if is strictly construed would cast a liability upon the selling dealer to verify that such declaration has been issued or furnished in accordance with some provision of the Act or the Rules made or any notification issued ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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