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Gopichand Vs. the Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Misc. Petition No. 300 of 1978
Judge
Reported in[1980]46STC298(MP)
AppellantGopichand
RespondentThe Commissioner of Sales Tax and anr.
Appellant Advocate A.M. Mathuar, Adv.
Respondent Advocate V.S. Kokje, Deputy Government Adv.
DispositionPetition dismissed
Cases ReferredBhopal v. State of M.P.
Excerpt:
.....was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - sales tax (central) rules, 1957, was amended and the amended rule provides that 'if for reasons to be recorded in writing the sales tax officer is not satisfied that the applicant requires the book of declaration forms in such numbers as he has applied for, he may issue such forms (in such lesser number) as, in his opinion, would satisfy the reasonable requirements of the applicant'.therefore, under the amended rule the sales tax officer has the power to issue lesser number of forms subject to the condition that he has to record the reasons therefor......2.the petitioner alleged that in september, 1978, he applied to respondent no. 2 for furnishing f form book to him. on 18th september, 1978, only one form was supplied to him and thereafter the petitioner was not supplied any form though he made various applications and reminded respondent no. 2 from time to time. the petitioner also approached the sales tax commissioner, respondent no. 1, by making representations on 3rd october, 1978, and 21st october, 1978. the petitioner further alleged that he orally requested respondent no. 2 to pass an order refusing the form in writing; but respondent no. 2 has refused to do so. the petitioner stated that respondent no. 2 arbitrarily refused to issue f form to him and that neither he is issuing f form to him nor assigning any reason therefor......
Judgment:
ORDER

R.K. Vijayvargiya, J.

1. This is a petition under articles 226 and 227 of the Constitution of India.

2. The facts giving rise to this petition may briefly be stated thus : The petitioner is carrying on business in the name and style of M/s. Gopichand Chhattamal at Indore. According to the petitioner, he is a registered dealer under the provisions of the Madhya Pradesh General Sales Tax Act, 1958, and the Central Sales Tax Act, 1956. The petitioner submitted that his business mostly consisted of acting as commission agent and that as commission agent he receives goods for sale on orders from various principals who are located at different places outside Madhya Pradesh. According to the petitioner, when any dealer consigns goods from one State to another State and the movement of goods is occasioned otherwise than as a result of sale then the consignor is not liable to pay any tax under the Central Sales Tax Act (hereinafter referred to as the 'Central Act') provided he complied with Section 6A(1) of the Central Act. Under Section 6A(1) of the Central Act, the dealer has to produce a declaration in the prescribed form from the person receiving the goods in the other State and the form to be furnished by the person receiving the goods in the other State has to be obtained from the prescribed authority. The authority prescribed in the State of M. P. is the Sales Tax Officer. The declaration referred to in Section 6A(1) of the Central Act has to be made in form F as provided under Rule 12(5) of the Central Sales Tax Rules, 1957. According to the petitioner, he is required to send the declaration in form F to his principals from whom goods are received by him for sale in his adhat. The declaration form F has to be obtained from the Sales Tax Officer, respondent No. 2.

The petitioner alleged that in September, 1978, he applied to respondent No. 2 for furnishing F form book to him. On 18th September, 1978, only one form was supplied to him and thereafter the petitioner was not supplied any form though he made various applications and reminded respondent No. 2 from time to time. The petitioner also approached the Sales Tax Commissioner, respondent No. 1, by making representations on 3rd October, 1978, and 21st October, 1978. The petitioner further alleged that he orally requested respondent No. 2 to pass an order refusing the form in writing; but respondent No. 2 has refused to do so. The petitioner stated that respondent No. 2 arbitrarily refused to issue F form to him and that neither he is issuing F form to him nor assigning any reason therefor. The petitioner prayed that by a suitable writ, direction or order the respondents be directed to do their legal duty under Section 6A of the Central Act and supply F form book to the petitioner.

3. The respondents in their return alleged that after the registration certificates were granted in the name of the petitioner certain complaints were received and, on enquiry, it was discovered that the petitioner is merely a name-lender and one Iswardas, son of Choithram has obtained the said certificate of registration in the name of the petitioner with a view to escape payment of sales tax. It was, therefore, contended that as there was likelihood of misuse of the F forms by the petitioner, respondent No. 2 had to exercise strict vigilance and utmost caution in issuing the same to the petitioner. The respondents submitted that on 15th September, 1978, the petitioner applied for one book of 25 F forms. He was asked to produce relevant papers to ascertain his actual requirement. In compliance thereof the petitioner's counsel appeared on 18th September, 1978. It was seen that the petitioner has then to issue only one F form against one consignment of goods received from M/s. Shomnath Traders, Ahmedabad, and therefore only one F form was ordered to be issued and was issued as per order passed on 18th September, 1978, which contains the signature of the petitioner's counsel. The order is produced as annexure R-I. From the order R-I it appears that one form was supplied to the petitioner for the time being and his application for one book of F form was not finally disposed of. It was further stated in the return that on 10th October, 1978, the petitioner again applied for F form. As on 22nd September, 1978, a notice was already issued to the petitioner requiring him to present himself in the office of respondent No. 2 on 6th October, 1978, with books of account and as the petitioner has not presented himself on that date the counsel for the petitioner was orally informed that the decision regarding further issue of F form will be taken after examining the petitioner and his books of account. That on examination of the books of account it was seen that the petitioner was liable to pay sales tax to the tune of Rs. 10,000 on the sales effected by him during the month of October, 1978. The petitioner was advised that he should pay this amount of tax so that he may be issued F forms according to his actual requirement. It was further stated that the petitioner's counsel argued that according to the rules the petitioner could make payment for the tax for the month of October up to 10th November, 1978. It was further stated that on 10th November, 1978, the petitioner informed respondent No. 2 in writing (annexure R-II) that he will not pay tax on the sale of goods which have been received by him on consignment till complete F forms book is issued to him.

It was further stated that on 16th November, 1978, the petitioner informed respondent No. 2 that he has paid the tax for the month of October, 1978, amounting to Rs. 10,000 on 15th November, 1978. He, therefore, requested that F forms book be issued to him. In reply to this letter, the petitioner was informed in writing (annexure R-III) that he should present himself with the challan and the relevant papers so that issue of F forms to him may be considered. It was further stated that in compliance with R-III the petitioner did not present himself and comply with the above requirements and, therefore, there is no ground for invoking the powers of this Court under articles 226 and 227 of the Constitution. The respondents prayed for dismissal of the petition.

4. It appears that the petition was filed by the petitioner under a misconception that the Sales Tax Officer had no power to issue F form less than a book containing 25 forms and in fact the petition was argued on that basis. However, Rule 8(1-A)(g) of the M. P. Sales Tax (Central) Rules, 1957, was amended and the amended rule provides that 'if for reasons to be recorded in writing the Sales Tax Officer is not satisfied that the applicant requires the book of declaration forms in such numbers as he has applied for, he may issue such forms (in such lesser number) as, in his opinion, would satisfy the reasonable requirements of the applicant'. Therefore, under the amended rule the Sales Tax Officer has the power to issue lesser number of forms subject to the condition that he has to record the reasons therefor. Under the unamended rule the Sales Tax Officer had no power to refuse to supply forms less than a book containing 25 forms. After the amendment that restriction no longer exists. From the orders of the Sales Tax Commissioner (R-I and R-III) it appears that the Sales Tax Officer has not passed any final order on the application of the petitioner for supply of F forms. By R-I dated 18th September, 1978, the Sales Tax Officer supplied one F form for the time being. It is clear from the order that no final order was passed by him. By R-III dated 28th November, 1978, the Sales Tax Officer informed the petitioner that he did not remain present on 16th November, 1978, (sic) regarding supply of forms to him. He was, therefore, directed to produce the challan for payment of tax for the month of October and to attend his office with the particulars of goods received in the relevant month so that his application may be considered. From this order and earlier order, it appears that the Sales Tax Officer also wanted the petitioner to deposit the payment of tax of the earlier month before his application for supply of F forms is considered. Presumably this was done in compliance with the provisions of Rule 8(1-A)(f) of the M. P. Sales Tax (Central) Rules, 1957, which empowers the Sales Tax Officer to refuse to supply declaration forms if the dealer has not paid sales tax for the relevant period. However, Rule 8(1-A)(f) has been declared ultra vires by a Division Bench of this Court in Dawar Brothers, Bhopal v. State of M.P. 1979 M.P.L.J. 524. The Sales Tax Officer, therefore, cannot insist on the fulfilment of the condition as provided under the said sub-rule and he has to consider the application of the petitioner for supply of forms on merits. If he comes to the conclusion that the dealer does not require the quantity of forms applied for by him and is of the opinion that lesser number of forms has to be issued to him he has to give reasons for his conclusion. As no final order has been passed by the Sales Tax Officer no direction can be given to him in this writ petition. This petition is, therefore, not tenable and has to be dismissed.

5. In the result, the petition fails and is dismissed subject to the observations made above. There shall be no order as to costs of this petition. The outstanding amount of security be refunded to the petitioner after verification.


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