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Eswara Oil Company Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberTax Revision Case No. 70 of 1979
Judge
Reported in[1983]53STC340(AP)
ActsAndhra Pradesh General Sales Tax Act - Sections 7-A(2), 14, 14(1), 14(2), 14(3), 14(4) and 14(8)
AppellantEswara Oil Company
RespondentState of Andhra Pradesh
Appellant AdvocateS.R. Ashok, Adv.
Respondent AdvocateThe Government Pleader
Excerpt:
.....by commercial tax officer - petitioner contention was that neither any bill was produced before assessing authority nor any claim for exemption was filed - section 7-a (2) and section 14 punishes a dealer who knowingly produces false bill with view to support any claim - declaration appended at end of return cannot be treated within meaning of section 7-a (2) - held, tax cannot be levied under section 7-a (2). - - ' 5. it would be appropriate in this context to refer to the provisions of section 14. sub-section (1) provides that if the assessing authority is not satisfied with the correctness or completeness of a return filed, he shall, after giving an opportunity to the assessee, make a best judgment assessment. sub-section (2) provides that, while making the best judgment..........for inspection or consideration may not be necessary. it is enough if on the basis of a false bill a dealer claims exemption in respect of a transaction covered by such false bill .......'. we find it difficult to accept this view. sub-section (2) of section 7-a reads as follows : '7-a. (1) ................ (2) where a dealer knowingly issues or produces a false bill, voucher, declaration, certificate or other document with a view to support or make any claim that a transaction of sale or purchase effected by him or any other dealer, is not liable to be taxed or is liable to be taxed at a reduced rate, the assessing authority shall, on detecting such issue or production, direct the dealer issuing or producing such document to pay as penalty - (i) in the case of first such.....
Judgment:

Jeevan Reddy, J.

1. The petitioner is a dealer in groundnut oil, engine oil and other goods, at Narsaraopet in Guntur District. For the month of June, 1974, it filed a return in form A-2 disclosing a turnover of Rs. 4,06,047.97 and claimed exemption on the entire turnover. Out of this gross turnover, a sum of Rs. 1,16,324.83 related to the sales of groundnut oil. Exemption was claimed on this turnover as second sales in the hands of the petitioner. Subsequently, it was detected by the Commercial Tax Officer, Narsaraopet, that a certain quantity claimed to have been purchased by the petitioner from one Kotha Venkateswara Rao of Rajahmundry, was a bogus claim and that the petitioner had merely obtained a bill without purchasing the goods from such person. The amount covered by the bill was Rs. 31,934.38. Since the petitioner could not satisfy the Commercial Tax Officer about the genuineness of the said purchase (claimed to have been made by it from Kotha Venkateswara Rao of Rajahmundry), the Commercial Tax Officer determined the net turnover at Rs. 35,127.81 (adding 5 per cent towards profit) by his provisional assessment order. In the annual return, however, the petitioner did not persist in its claim for exemption for the said amount of turnover.

2. Proceedings were taken against the petitioner under section 7-A(2) of the Andhra Pradesh General Sales Tax Act, in respect of the aforesaid false claim, and penalty in an amount three times the tax due was levied. This penalty has been affirmed by the Appellate Tribunal.

3. In this tax revision case, it is contended by Sri S. R. Ashok, the learned counsel for the petitioner (assessee), that the bill said to have been obtained by the petitioner from Sri Kotha Venkateswara Rao of Rajahmundry, was admittedly not produced before the assessing authority. Even form E prescribed by the Rules was not filed by the petitioner claiming exemption. In such a case, it is contended, section 7-A(2) of the Act is not at all attracted, and no penalty could have been levied.

4. We find that this contention has to be given effect to. The order of the Tribunal makes it clear that the petitioner did not produce the bill said to have been obtained by it from Kotha Venkateswara Rao, nor did it file form E claiming exemption. What all happened was that the petitioner had filed a return in form A-2 (monthly return) for the month of June, 1974, claiming exemption as aforesaid. Now, what is pointed out by the Tribunal is that, even though the petitioner did not produce the bill, nor did it file form E (claiming exemption) before the assessing authority, the declaration contained in the monthly return sufficient to attract sub-section (2) of section 7-A. Indeed, the Tribunal seems to be of the view that 'though the section contemplates production of a false bill to claim exemption, we are inclined to hold that actual production in the literal sense of bringing forward for inspection or consideration may not be necessary. It is enough if on the basis of a false bill a dealer claims exemption in respect of a transaction covered by such false bill .......'. We find it difficult to accept this view. Sub-section (2) of section 7-A reads as follows :

'7-A. (1) ................

(2) Where a dealer knowingly issues or produces a false bill, voucher, declaration, certificate or other document with a view to support or make any claim that a transaction of sale or purchase effected by him or any other dealer, is not liable to be taxed or is liable to be taxed at a reduced rate, the assessing authority shall, on detecting such issue or production, direct the dealer issuing or producing such document to pay as penalty -

(i) in the case of first such detection, three times the tax due in respect of such transaction; and

(ii) in the case of a second or subsequent detection, five times the tax due in respect of such transaction :

Provided that before issuing any direction for the payment of the penalty under this section, the assessing authority shall give to the dealer an opportunity of making representation against the levy of such penalty.'

5. It would be appropriate in this context to refer to the provisions of section 14. Sub-section (1) provides that if the assessing authority is not satisfied with the correctness or completeness of a return filed, he shall, after giving an opportunity to the assessee, make a best judgment assessment. Sub-section (2) provides that, while making the best judgment assessment under sub-section (1), the assessing authority may also direct the dealer to pay a penalty as specified in sub-section (8). Sub-section (3) provides that, where a dealer fails to submit a return, or files the return or produces his accounts, etc., after inspection, the assessing authority may make a best judgment assessment, and also levy the penalty under sub-section (8). Sub-section (4) provides for assessment of escaped turnover. Even in this case, the assessing authority is entitled not only to assess the escaped turnover, but also to levy penalty as provided in sub-section (8). Sub-section (8) provides for levy of penalty. It read thus :

'(8) The penalty leviable under sub-section (2), sub-section (3) or sub-section (4) shall not exceed -

(a) five times the tax, or the fee, due in a case where the assessing authority is satisfied that the failure of the dealer to disclose the whole or part of the turnover or any other particulars correctly, or to submit the return before the prescribed date, was wilful; and

(b) one half of the tax or the fee, due in a case where such failure was not wilful :

Provided that where such failure occurred due to a bona fide mistake on the part of the dealer, no such penalty shall be levied ...'

6. A reading of section 7-A(2) and section 14 of the Act discloses the respective fields occupied by them. Non-filing of a return, or filing of an incorrect or incomplete return, as also non-disclosure of whole or part of the turnover, and failure to disclose any other particulars correctly, is made punishable under section 14 itself, while section 7-A(2) punishes a dealer who knowingly issues or produces a false bill, voucher, declaration, certificate or other document with a view to support or make any claim that a transaction of sale or purchase effected by him, or any other dealer, is not liable to be taxed or is liable to be taxed at a reduced rate. In our opinion, when section 7-A(2) refers to a false declaration, among other things, it refers to a declaration as such which is prescribed either by the Rules, or can otherwise be called a declaration. The declaration appended at the end of the return cannot, in our opinion, be treated as a declaration within the meaning of section 7-A(2). It is not a declaration by itself, but an integral and inseparable portion of the return prescribed by the Rules. Every return, whether monthly or annual, has to contain a declaration affirming 'I/we ........ declare that to the best of my/our knowledge and belief, the information furnished in the above statement is true and complete', which has to be signed by the person filing the return. In the context of the fact that we are dealing with a penalising provision, it would not be reasonable or proper to construe the said declaration appended to the return as a declaration within the meaning of section 7-A(2). Doing so would amount to dividing the return (i.e., a false return) into two parts, one punishable under section 14 and the other under section 7-A(2) - an uncalled for distinction. We are equally of the opinion that a return would not fall within the expression 'other document' in sub-section (2) of section 7-A, a fact which becomes evident from the distinctive scheme of the two provisions. Penalty under section 7-A(2) can be levied for the mere issuance or production of a false bill, voucher or declaration, etc., whether before finalising the assessment, or thereafter; whereas penalty under sub-section (8) of section 14 can be levied only at the time of, or subsequent to, the making of the assessment order.

7. Inasmuch as it is found by the Tribunal in this case that the petitioner has not actually produced the bill said to have been falsely obtained by it from Kotha Venkateswara Rao of Rajahmundry, nor did it file the declaration in form E no penalty could have been levied upon it under sub-section (2) of section 7-A.

8. For the above reasons, the tax revision case succeeds and is, accordingly, allowed. No costs. Advocate's fee Rs. 250.


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