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Commissioner, Sales Tax Vs. Indo Overseas Agencies - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 489 of 1965
Judge
Reported in[1969]24STC81(All)
AppellantCommissioner, Sales Tax
Respondentindo Overseas Agencies
Appellant AdvocateStanding Counsel
Respondent AdvocateK.M. Dayal, Adv.
Excerpt:
- .....and signed by a duly authorised officer of the government. that form, as we have indicated, is the form 'd' prescribed by rule 12 of the central sales tax (registration and turnover) rules. it cannot be disputed that it is incumbent upon a dealer who seeks the benefit of section 8(1)(a) to furnish the form 'd'. that is a mandatory requirement of the statute. but while complying with that mandatory requirement, it may be that the dealer files a form 'd' which is incomplete or suffers from a removable defect. so long as that omission or defect is removed before the assessment is completed, the sales tax officer is bound to take the form 'd' into account. the form 'd' has to be filled in by an officer of the government. it is not within the power of the assessee to have the form filled.....
Judgment:

R.S. Pathak, J.

1. The assessee makes supplies to the Metal and Steel Factory, Isapur. It is a factory belonging to the Government. In the assessment proceedings for the assessment year 1958-59, the assessee claimed the benefit of Section 8(1)(a) of the Central Sales Tax Act and filed a Form 'D' received from the Government in evidence of a sale to the Government in the amount of Rs. 5,287.85 P. The Sales Tax Officer rejected the Form 'D' on the ground that it did not specify the amount for which the sale had been effected. Accordingly instead of giving the assessee the benefit of the concessional rate under Section 8(1)(a), he assessed the turnover to tax at the rate of 7 per cent. An appeal by the assessee in the matter was dismissed by the Assistant Commissioner (Judicial) Sales Tax. The assessee filed a revision application. Before the Judge (Revisions) reliance was placed upon a circular issued by the Commissioner of Sales Tax directing Sales Tax Officers to permit assessees to have the Form 'D' rectified where it was found that it suffered from some defect. The Judge (Revisions) took note of the circular and held that the Sales Tax Officer should have given an opportunity to the assessee to get the Form 'D' rectified. He set aside the assessment order and remanded the case.

2. At the instance of the Commissioner of Sales Tax, the Judge (Revisions) has referred the following question :

Whether under these circumstances when no opportunity had been given in compliance to the circular letter of the Commissioner, Sales Tax, for the removal of the defect, whether a remand to implement this circular could have been passed or not

3. In our opinion, the true question which arises in the instant reference is slightly wider, and we reframe the question as follows:

Whether on the facts and in the circumstances of the case the Judge (Revisions) was right in law in remanding the case in order to give an opportunity to the assessee to have the defect removed in the 'D' Form ?

4. Section 8(1)(a) of the Central Sales Tax Act declares that every dealer who in the course of inter-State trade or commerce sells to the Government any goods shall be liable to pay tax under that Act at 2 per cent, of the turnover. The benefit of the concessional rate of tax has been given where goods are supplied to the Government. Section 8(4)(b) provides that the benefit of Section 8(1) will be available only to a dealer, who furnishes to the prescribed authority in the prescribed manner, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government. Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957, provides that the certificate referred to in Section 8(4) shall be in Form 'D'. The prescribed Form 'D' mentions a number of particulars to be filled in by the officers of the Government, and among those particulars, are particulars of the purchase order and of the bill. It appears that in the case before us, the bill number and the amount for which the sale was made were not entered in the Form 'D' issued by the Government officer and the Form 'D' was filed by the assessee as it was. When the case came on for hearing before the Judge (Revisions), he referred to the circular issued by the Commissioner of Sales Tax to Sales Tax Officers directing that in case where Form 'D' was defective and suffered from some irregularity, the Sales Tax Officers should afford an opportunity to the assessee to have the defect or irregularity removed. This benefit appears to have been extended because the Form 'D' was issued by a Government officer. The Judge (Revisions) took the view that the Sales Tax Officer should have given an opportunity to the assessee to have the defect removed, and as that opportunity was not afforded he remanded the case. Sri R.M. Sahai, learned Standing Counsel appearing for the Commissioner, contends that the circular was without jurisdiction and that it was not competent for the Commissioner within the powers contained in Rule 82 of the U.P. Sales Tax Rules to issue such a circular. It appears to us unnecessary to decide whether the circular was in law binding upon the Sales Tax Officer because, to our mind, the Judge (Revisions) in remanding the case on the view that the Sales Tax Officer should have afforded an opportunity to the assessee to rectify the defect in Form 'D' acted within the sound exercise of his jurisdiction.

5. All that the statute requires is that in order to avail of the benefit of Section 8(1)(a) a dealer must furnish to the prescribed authority in the prescribed manner a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government. That form, as we have indicated, is the Form 'D' prescribed by Rule 12 of the Central Sales Tax (Registration and Turnover) Rules. It cannot be disputed that it is incumbent upon a dealer who seeks the benefit of Section 8(1)(a) to furnish the Form 'D'. That is a mandatory requirement of the statute. But while complying with that mandatory requirement, it may be that the dealer files a Form 'D' which is incomplete or suffers from a removable defect. So long as that omission or defect is removed before the assessment is completed, the Sales Tax Officer is bound to take the Form 'D' into account. The Form 'D' has to be filled in by an officer of the Government. It is not within the power of the assessee to have the form filled according to the manner which he prefers. He can only take the Form 'D' received from the Government officer and file it before the Sales Tax Officer. If the Form 'D' suffers from an omission or defect, and the assessee comes to know of it, he can request the Government officer to remove it. To enable the assessee to do so would be to act in the interest of justice and fairplay. The Sales Tax Officer should have afforded that opportunity to the assessee. The Judge (Revisions), in our opinion, acted rightly in remanding the case so that that opportunity could be afforded to the assessee.

6. We answer the question in the affirmative.

7. The assessee is entitled to his costs which we assess at Rs. 100.


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