9911796707
TMI Blog2021 (6) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... oned above, the petitioner however failed to respond the same. It is not clear why the petitioner failed to furnish the records earlier to substantiate sale effected to register dealers outside the State against Form C. It is also not clear as to why, the petitioner did not respond to the notices issued earlier even though the respondent has filed documents/postal acknowledgments evidencing service of the respective notices issued to the petitioner calling upon the petitioner to file Form C - from the documents that have been filed before this Court, what is discernible is that the petitioner has attempted to take advantage of alleged fire accident on 13.08.2012 in one of its godown and the flood that ravaged the city of Chennai in November-December, 2015 to its advantage. Barring an averment in the affidavit, there is no document to substantiate the fire accident. There is also no explanation forthcoming from the petitioner as to why the documents were not furnished earlier even though notices were served on the petitioner - there was no excuse for the petitioner to not to file Form C. It cannot shy away from its statutory liability and responsibility to establish that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom proceeding further with the recovery proceedings. 4. It was submitted that the impugned orders are without jurisdiction in view of the amendment under proviso Section 22(2) of the Tamil Nadu Value Added Tax Act, 2006 with effect from dated 19.06.2012. Therefore, these orders are liable to be quashed while giving liberty to the respondent to initiate appropriate proceedings against the petitioner to recover the tax that may have escaped assessment in accordance with law. 5. It is the contention of the petitioner that the impugned orders dated 15.11.2016 08.12.2016 have been passed pursuant to the notices dated 28.12.2011 and 19.11.2014 for the Assessment Years 2008-2009 2009-2010. 6. The learned counsel for the petitioner further submits that there was a fire accident in the petitioner s factory on 13.08.2012 and a F.I.R came to be filed on 14.08.2012 and that subsequently due to the flood that ravaged the Chennai City during December 2015, not only the stocks of the petitioner s were lost but also the records. Therefore, there are no records that are available with the petitioner's company relating the sales, returns filed for the Assessment Years 2008-2009 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on a fresh notice to be issued, henceforth, no useful purpose will have to be asking the respondent to issue fresh notice and pass fresh speaking order. 13. The learned counsel also referred to the decision of this Court in Sri Ganea Vs The State Tax Officer, Krishnagiri in W.P.No.30725 of 2019, wherein, this Court by an order dated 04.08.2000, has concluded that the limitation prescribed under the Tamil Nadu Value Added Tax Act, 2006, would apply to the assessment under the Central Sales Tax Act, 1944. 14. There, the Assessment Orders came to be passed pursuant to a notice dated 14.03.1980 and the limitation for issuing the said notice expired on 31.03.1980. The Assessment Orders were set aside by the Appellate Assistant Commissioner (Commercial Taxes), by directing the Deputy Commercial Taxes Officer to issue a fresh notice and after inviting their objections to pass fresh order. 15. Pursuant to the order of the Appellate Assistant Commissioner (Commercial Taxes), the Deputy Commercial Tax Officer issued notice dated 05.02.1981. By which time, last date for issuing notice under Section 16 of the Tamil Nadu General Sales Tax Act, 1959 has already expired. 16. Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justly and truly, then an erroneous invitation to or quotation of a wrong provision of law in the notice whereunder the proceedings are initiated does not matter at all. It is the substance that matters and not the form. 20. The learned Government Advocate for the respondent also submits that the demand in the impugned orders are on account of failure of the petitioner to furnish Form-C on the Inter-State sale effected by the petitioner and even after the records of the petitioner will lost during the relevant Assessment Years in a fire accident on 13.08.2012 and subsequently during the ravishing flood in December 2015, it was open for the petitioner to procure duplicate and counterfoil copies of Form-C from whom the Inter-State sales were effected under Section 8(3)(b) of the Central Sales Tax Act, 1956. 21. The learned Government Advocate for the respondent drew attention to Paragraphs 12 14 from the decision of the Hon ble Supreme Court in India Agencies(Regd.), Bangalore Vs Additional Commissioner of Commercial Taxes, Bangalore , (2005) 2 SCC 129 which are reproduced below:- 12.We have carefully considered the elaborate submissions made by the learned Senior Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Central Sales Tax Act and there is no conflict between the provisions of Rules 12(2) and (3) of the Central Sales Tax Rules and Rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957 as contended by the appellant. Rule 12 of the Rules is intended to prevent misuse of C Forms by unscrupulous and mischievous dealers and makes it obligatory for the dealer to furnish indemnity bond . In other words, in order to claim concessional rate of tax, the original C Form has to be attached to the return as provided under Rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957. It is not a mere formality or technicality but it is intended to achieve the object of preventing the forms being misused for the commission of fraud and collusion with a view to evade payment of taxes. In our opinion, Rule 6(b)(ii) which is clear and categoric cannot be liberally construed but it should be construed strictly. We, therefore, hold that without producing the original of the C Form as prescribed under Rule 6(b)(ii) of the Rules, the appellant is not entitled to concessional rate of tax under subsection (4) of Section 8 of the Act. 22. Finally, the learned Government Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the assessing authority to initiate fresh proceeding under section 12 of the Act by issuing a notice for assessment or reassessment, if the period of limitation prescribed in the aforesaid section during which such notice can be validly issued has already expired. 27. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocate for the respondent. In these proceedings, the petitioner has questioned the correctness of the reassessment order dated 16.11.2016 and 08.12.2016 for the Assessment Years 2008-2009 and 2009-2010 under the provisions of the Central Sales Tax Act, 1956 respectively. For the purpose of assessment under the provisions of the Central Sales Tax Act, 1956, the provisions of the Tamil Nadu Value Added Tax Act, 2006 has been made applicable. 28. The provisions of the local tax enactment namely the Tamil Nadu Value Added Tax Act, 2006 has been made applicable for assessment under the provisions of the Central Sales Tax Act, 1956 vide Section 9 (2) of the said Act. 29. The petitioner had been issued with notices dated 28.12.2011 for the assessment year 2008-2009 and notice dated 06.11.2014 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical records allegedly lost either due to the fire accident on 13.08.2012 or during the flood that ravaged the City of Chennai between the last week of November 2015 and first three weeks of December 2015 cannot be retrieved. 36. Therefore, there was no excuse for the petitioner to not to file Form C. It cannot shy away from its statutory liability and responsibility to establish that the transactions in respect of which claimed concession Inter-State sale against Form C to registered dealers outside the State of Tamil Nadu and still not file the same. 37. At the same time, it is to be noticed that Section 22 of the Tamil Nadu Value Added Tax Act, 2006 was amended in the year 2012 with effect from 19.06.2012. As per Section 22 of the Tamil Nadu Value Added Tax Act, 2006, assessment in respect of a dealer shall be on the basis of return relating to turnover submitted in the prescribed manner and that the Assessing Officer was required to accept the return submitted for the year if the returns were filed in prescribed form and accompanied with the prescribed documents and the proof of payment of tax. Prior to 19.06.2012, Assessment Order was to be passed. However, in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
