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TMI Blog2018 (1) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 - - - Dated:- 20-12-2017 - T. Sivagnanam, J. For the Petitioner : M/s.Giridhar and Sai Mr.G.S.Vivekmani For the Respondents : Mr.K.Venkatesh Government Advocate ORDER Heard Mr.G.S.Vivekmani, learned counsel for M/s.Giridhar and Sai, learned counsel for the petitioner and Mr.K.Venkatesh, learned Government Advocate for the respondents. 2.The petitioner is aggrieved by a communication sent by the third respondent dated 09.08.2017 stating that the third respondent cannot revise the assessment order dated 24.05.2017, as only an appeal lies against the said order. In the impugned communication, the third respondent accepts the fact that the petitioner has filed export documents but would state that they have not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows : 16.We would proceed now to advert to the different ways in which the discretion to allow further time for filing C forms is conferred by the proviso to Section 84 of the Act, on the one hand, and the proviso to Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, on the other. The proviso in the Act simply says that the C forms shall be filed before the prescribed authority either within the prescribed time or within such further time as that authority may, for sufficient cause, permit . As a matter of construction of the proviso in the statute, if there is sufficient cause, further time will have to be allowed. The proviso to the Section does not insist that the assessee should establish before the prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound himself. The rule, however, casts the burden on the assessee and makes the position more difficult for him to invoke the power successfully. It also narrows down the discretion of the authority concerned. The question, however, is which is to be the master, the proviso in the Section or the proviso in the rule ? There can be no doubt about the legal position that a rule cannot prevail against the statute, by being repugnant to the statute. A study of the structure of the proviso to Section 84 shows how Parliament's peculiar preferences had worked in this regard. While Parliament was content to leave to the rule-making authority, namely, the Central Government, the task of prescribing a rule laying down the time-limit for furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty should invoke is the power defined in the proviso to Section 84 and not the power defined in the proviso to Rule 12(7). 19.We do not think there is any room for the perplexity given expression to by the learned Government Pleader. Given the assessing authority's undoubted power to allow further time for C forms to be filed on sufficient cause, the rest of it is mere procedure or follow up action. Where the assessing authority is satisfied, in a given case, about the existence of sufficient cause, it must necessarily be followed up by appropriate action, such as reopening the assessment already completed. Perhaps the requisite corrective action can be taken by invoking the assessing authority's statutory power of rectificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns under the State for assessment, review, revision, re-convey measures, etc., for the purpose of assessment and recovery of tax due under the Central Act. Therefore, the respondent has power to invoke Section 84 of the TNVAT Act and revise the assessment under the CST Act. 4.The case on hand is one such case where the petitioner states that they are now in possession of the relevant declaration forms and if opportunity is granted, the petitioner would be able to produce the same. In the light of the above factual position, this Court is inclined to grant one opportunity to the petitioner to remedy the breach and produce the necessary documents. 5.In the result, the writ petitions are disposed of by directing the petitioner to fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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