w w w . L a w y e r S e r v i c e s . i n



M/s. Kamadhenu Cotton & Agro Industries, Rep. by its Proprietor M. Adinarayana Gupta v/s The Commercial Tax Officer, Brodiepet Circle, Guntur & Others

    Writ Petition No. 23217 of 2020

    Decided On, 09 December 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE A.V. SESHA SAI & THE HONOURABLE MR. JUSTICE K. SURESH REDDY

    For the Petitioner: K. Srinivasa Rao, Advocate. For the Respondents: Y.N. Vivekananda, Government Pleader for Commercial Taxes.



Judgment Text

A.V. Sesha Sai, J.

1. The present Writ Petition is filed for a writ of Mandamus directing the Commercial Tax Officer, Brodiepet Circle, Guntur-first respondent herein to dispose of the representations, dated 23.07.2016 and 20.08.2020, said to have been filed by the petitioner herein, for passing a revised assessment order for the assessment year, 2012-2013 under the Central Sales Tax Act, 1956.

2.Heard Sri K.Srinivasa Rao, learned counsel for the petitioner, and Sri T.C.D.Sekhar, learned Government Pleader for Commercial Taxes, apart from perusing the entire material available on record.

3.For the assessment year, 2012-2013, the first respondent herein issued an order of assessment vide proceedings No.19.11.2015. It is stated in the affidavit, filed in support of the Writ Petition, that on 23.07.2016, petitioner herein filed a representation before the first respondent enclosing ‘C’ forms, as per sub-Rule (7) of Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 (for brevity, ‘the Rules’). It is also the case of the petitioner herein that he did not receive either the show cause notice or the assessment order and the petitioner got the knowledge of the assessment order only when a demand was made vide order, dated 05.08.2020. It is stated that the petitioner herein also submitted a representation on 24.08.2020 i.e. after receipt of the demand.

4.According to the learned counsel for the petitioner, the impugned action of non-consideration of the representations, submitted by the petitioner herein, is highly illegal, arbitrary, violative of Article 14 of the Constitution of India and opposed to the very spirit and object of the provisions of the Rules. It is also the submission of the learned counsel that, since there is no limitation prescribed, under Rule 12 (7) of the Rules, it is incumbent on the part of the first respondent herein to consider the request made by the petitioner in a positive manner. In support of his submissions and contentions, learned counsel places reliance on the judgment of this Court, dated 19.09.2017, passed in W.P.No.27958 of 2017.

5.On the contrary, it is vehemently contended by the learned Government Pleader that, having slept over the matter for three years for submission of ‘C’ forms, it is absolutely not open for the petitioner herein to insist on consideration of the representation, said to have been made on 23.07.2016. It is also the submission of the learned Government Pleader that the assessment order clearly demonstrates about the receipt of show cause notice and non-submission of the objections to the same by the petitioner herein. It is also the further submission of the learned Government Pleader that the proviso to sub-Rule (7) of Rule 12 of the Rules is intended for the persons with bona fide conduct and not for the persons who sleep over the matter, without any reasonable cause. It is also the submission of the learned Government Pleader that, when the main provision of sub-Rule (7) of Rule 12 of the Rules clearly stipulates only three months’ period for submission of ‘C’ forms, petitioner herein cannot seek extension beyond the said period in the guise of the proviso to Rule 12 (7) of the Rules. It is the further submission of the learned Government Pleader that, in the absence of any valid reason assigned by the assessee, the assessee, in the instant case, is not entitled for any indulgence under the said provision of law. On instructions, it is also submitted by the learned Government Pleader that the petitioner herein received the assessment order on 21.12.2015.

6.In order to consider the issue in the present Writ Petition, it is highly essential to refer to the provisions of

Rule 12 of the Rules. The said provision of law reads as under:

(1) The declaration and the certificate referred to in sub-section (4) of section 8 shall be in Forms C and D respectively:

[Provided that Form C in force before the commencement of the Central Sales Tax (Registration and Turnover) (Amendment) Rules, 1974, or before the commencement of the Central Sales Tax (Registration and Turnover) (Amendment) Rules, 1976, may also be used upto the 31st December, [1980] with suitable modifications:]

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[Provided further that a single declaration may cover all transactions of sale, which take place in a quarter of a financial year between the same two dealers:

Provided also that where, in the case of any transaction of sale, the delivery of goods is spread over to different quarters in a financial year or of different financial years, it shall be necessary to furnish a separate declaration or certificate in respect of goods delivered in each quarter of a financial year.]

[(2) Where a blank or duly completed form of declaration is lost, whether such loss occurs while it is in the custody of the purchasing dealer or in transit to the selling dealer, the purchasing dealer shall furnish in respect of every such form so lost an indemnity bond [in Form G] to the notified authority from whom the said form was obtained, for such sum as the said authority may having regard to the circumstances of the case, fix. Such indemnity bond shall be furnished by the selling dealer to the notified authority of his State if a duly completed form of declaration received by him is lost, whether such loss occurs while it is in his custody or while it is in transit to the notified authority of his State:]

[Provided that where more than one form of declaration is lost, the purchasing dealer or the selling dealer, as the case may be, may furnish one such indemnity bond to cover all the forms of declarations so lost.]

[(3) Where a declaration form furnished by the dealer purchasing the goods or the certificate furnished by the Government has been lost, the dealer selling the goods, may demand from the dealer who purchased the goods or, as the case may be, from the Government, which purchased the goods, a duplicate of such form or certificate, and the same shall be furnished with the following declaration recorded in red ink and signed by the dealer or authorised officer or the Government, as the case may be, on all the three portions of such form or certificate:-

"I hereby declare that this is the duplicate of the declaration form/certificate No.........................signed on.....................and issued to.............................who is registered dealer of................(State) and whose registration certificate number is ................"]

[(4) The certificate referred to in sub-section (2) of section 6 shall be in Form EI or Form EII, as the case may be.]

[(5) The declaration referred to in sub-section (1) of section 6-A shall be in Form F:]

[Provided that a single declaration may cover transfer of goods, by a dealer, to any other place of his business or to his agent or principal, as the case may be, effected during a period of one calendar month:-

Provided further that if the space provided in Form F is not sufficient for making the entries, the particulars specified in Form F may be given in separate annexures attached to that form so long as it is indicated in the form that the annexures form part thereof and every such annexure is also signed by the person signing the declaration in Form F:

Provided further that Form F in force/before the commencement of the Central Sales Tax (Registration and Turnover) (Second Amendment) Rules, 1973 may continue to be used up to 31st day of December, [1980] with suitable modifications.]

[(6) Form C referred to in sub-rule (1), or as the case may be Form F referred to in sub-rule (5), shall be the one obtained by the purchasing dealer or, as the case may be, the transferee in the State in which the goods covered by such form are delivered.]

[Explanation .-Where, by reason of the purchasing dealer not being registered under section 7 in the State in which the goods covered by Form C referred to in sub-rule (1) are delivered, he is not able to obtain the said form in that State, Form C may be the one obtained by him in the State in which he is registered under the said section.]

[(7) The declaration in Form C or Form F or the certificate in Form E-I or Form E-II shall be furnished to the prescribed authority within three months after the end of the period to which the declaration or the certificate relates:

Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit.]

[(8)(a) The person referred to in clause (a) of sub-rule (1) of rule 3 shall alone be competent to sign the declaration in Form C or Form F or the certificate in Form EI or Form EII]:

[Provided that where such person is a proprietor of any business or a partner of a firm or a karta or manager of a Hindu undivided family, any other person authorised by him in writing may also sign such declaration or certificate:]

[Provided further that in the case of a company such declaration or certificate can also be signed by any other officer of the company authorised under the Memorandum or Articles of Association of the company or under any other special or general resolution of the company or under a resolution passed by the Board of Directors of the company, to authenticate any document on behalf of such company.]

[(b) Such person shall signify on such declaration or certificate his status and shall make a verification in the manner provided in such declaration or certificate.]

(9) [(a)] The provisions of [[* * *] sub-rule (2)] and sub-rule (3) shall, with necessary modifications, apply to the declaration in Form F or the certificate in Form EI or Form EII.]

[(b) The provisions of the second and third provisos to sub-rule (1) shall, with necessary modifications, apply to certificates in Form EI or Form EII.]

[(10) [(a) The declaration referred to in sub-section (4) of section 5 shall be in Form H and shall be furnished to the prescribed authority upto the time of assessment by the first assessing authority.]

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[(b) The provisions of the rules framed by the respective State Governments under sub-sections (3), (4) and (5) of section 13 relating to authority from whom and the conditions subject to which any form of certificate in Form H may be obtained, the manner in which such form shall be kept in custody and records relating thereto maintained and the manner in which any such forms may be used and any such certificate may be furnished insofar as they apply to declaration in Form C prescribed under these rules shall mutatis mutandis apply to certificate in Form H.]

[(11) The declaration referred to in sub-section (8) of section 8 of the Act, shall be in Form I.]

[(11-A) The certificate referred to in sub-section (4) of section 6 shall be in Form J and shall be furnished to the prescribed authority upto the time of assessment by the first assessing authority.]

[(12) If any person commits a breach of any of these rules, he shall be punishable with fine which may extend to five hundred rupees and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.]

7.It is very much evident from a reading of the above provision of law that the declaration in form ‘C’ is required to be furnished to the prescribed authority within three months after the end of the period to which the declaration or the certificate relates. In the instant case, the assessment pertains to the period 2012-2013. Three months period, according to the said provision of law, came to an end by the end of June, 2013. As per the proviso to Rule 12 (7) of the Rules, the prescribed authority is empowered to receive form ‘C’ if the authority is satisfied that the assessee concerned was prevented by sufficient cause from furnishing the same within time. Therefore, it is very much lucid that it is mandatory on the part of the assessee to show sufficient cause for submission of ‘C’ forms with delay and the said consideration, in the considered opinion of this Court, is not automatic, however, subject to the satisfaction of the authority concerned. In fact, the said provision of law, obviously, imposes an obligation on the authority to record the satisfaction with regard to the cause shown by the assessee which prevented the assessee from filing the required form within time. Therefore, it is for the authority to consider the entire material available on record and to arrive at a conclusion as to whether the assessee assigned proper and sufficient cause for not filing ‘C’ forms within the prescribed period. In this context, it may be appropriate to refer to the judgment of the composite High Court in the case of Godrej Agrovet Limited v. Commercial Tax Officer, Eluru, West Govari District (2007) 7 VST 730 (AP). In the said judgment, the composite High Court, at paragraph Nos.4 to 6, held as under:

“4. It is thus clear that sub-rule (7) of Rule 12 of the Rules confers power upon the assessing authority to receive C forms where sufficient cause is shown by the dealer for not filing them up to the time of assessment. There is no limitation as such provided for receiving the C forms and they can be received at any time after the order of assessment, provided sufficient cause is shown. We may, however, hasten to add that the making of assessment itself cannot be postponed at the instance of a dealer in order to enable the dealer to produce such C forms, if such postponement results in bar of limitation in making the assessment. It means that if an assessment can be postponed and if such postponement is not hit by the limitation, time can always be extended by the assessing authority in order to enable any dealer to produce the C forms and in case, if such C forms are not produced, it does not takeaway the right of the dealer to produce them even after making of the assessment order, provided a sufficient cause is shown.

5. In W.P No. 12657 of 2005, the assessing authority rejected the request of the petitioner on the ground that F forms have been filed after a period of more than six months after issuing the demand notice, which in our considered opinion, is unsustainable. There is no limitation as such for receiving the F forms provided sufficient cause is shown. The impugned order is, therefore, set aside. The authority is directed to consider whether the dealer had shown sufficient cause for the belated filing of the F forms and decide the matter on its own merits. If the authority comes to the conclusion that the dealer has shown the sufficient cause, it shall receive the same for passing further appropriate orders in accordance with law.

6. That so far as W.P No. 10978 of 2005 is concerned, the authority did not pass any order either accepting or rejecting the request of the dealer to receive the C forms. However, in the counter affidavit it is stated that the dealer did not produce any such C forms, about which we do not propose to express any opinion though the learned counsel for the petitioner made an attempt to produce evidence in support of the plea that C forms have been produced by t

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he dealer before the authority. It shall be open to the dealer to produce the C forms even now before the assessing authority and the same shall be received, provided sufficient cause is shown by the petitioner for the belated filing of the C forms. The petitioner is accordingly directed to produce the C forms within a period of three weeks from today, which shall be received by the authority for its consideration to decide as to whether the petitioner had shown any sufficient cause for the belated filing of the C forms and appropriate further orders shall be passed in accordance with law”. 8.It is very much clear from a reading of the above paragraphs that obligation is cast upon the assessee to demonstrate the existence of sufficient cause which prevented the assessee from filing the ‘C’ forms within time. In the instant case, on the application, dated 23.07.2016, there is no response given by the first respondent. Therefore, having regard to the same, this Court deems it appropriate to dispose of the Writ Petition with a direction to the first respondent herein to consider the representations, dated 23.07.2016 and 20.08.2020, said to have been submitted by the petitioner herein, under Rule 12 (7) of the Rules, and to take appropriate action/pass appropriate orders, strictly in accordance with law and in the light of the observations made supra, as expeditiously as possible, preferably within a period of one month from the date of receipt of a copy of this order, after affording opportunity of hearing to the assessee. 9.Accordingly, Writ Petition is disposed of. There shall be no order as to costs. Miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
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