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Electrofab Industries Vs. Sales Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Petition No. 67 of 1982
Judge
Reported in[1984]56STC101(MP)
AppellantElectrofab Industries
RespondentSales Tax Officer and anr.
Appellant Advocate M.S. Choudhary, Adv.
Respondent Advocate S. Kulshreshtha, Deputy Government Adv.
DispositionPetition dismissed
Cases ReferredJeshinghbhai Ujamshi v. Commissioner of Income
Excerpt:
.....but he shall not be liable to pay any penalty under the said sub-section (6). rule 8. grant of registration certificate. -(1) when the appropriate sales tax officer or the authorised officer, as the case may be, after making such enquiry as he may think necessary, if satisfied that the applicant has correctly given all the requisite information, paid the prescribed fee and that the application is in order, he shall register the dealer and shall issue to him a certificate of registration in form iv within the period specified in clause (a) of sub-section (4) of section 15. (2) the fee payable under sub-section (7) of section 15 shall be paid by the dealer before furnishing return in form viii for the quarter expiring immediately after the commencement of the financial year and copy of..........2007 (30 of 1950), shall, on such commencement, be deemed for all purposes of this act to be a dealer registered and holding a certificate of registration under this section.(7) every dealer shall, until his registration is cancelled, be liable to pay in the manner and within the period prescribed a fee of rupees fifty for every financial year subsequent to that in which a certificate of registration is granted to him under sub-section (4).(8)(a) when a dealer makes an application for amendment of his certificate of registration in pursuance of the provisions of section 32 or otherwise, the commissioner shall, after making such enquiry, as he deems fit, amend the certificate of the dealer or reject the application for amendment within ninety days from the date of such application;(b).....
Judgment:

G.G. Sohani, J.

1. This petition under Articles 226 and 227 of the Constitution of India, is directed against the order dated 29th November, 1981, passed by the Deputy Commissioner of Sales Tax, Indore, in Revision No. DCR/313/81-82.

2. The material facts giving rise to this petition briefly are as follows :

The petitioner, a firm consisting of partners Sunil, S/o Kalyanmal Vyas andPrabodh, S/o Vinayak Bhise, submitted an application dated 21st May, 1981, before respondent No. 1 for registration under the provisions of Section 15/16 of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act'). In that application, it was not disclosed that the partners of the petitioner-firm had interest in any other business even though in the prescribed application form, such information was required to be given. In the course of enquiry made by the Sales Tax Officer, it came to light that the partners of the petitioner-firm were carrying on business as partners of another firm 'Teknomech Engineers' and that firm was duly registered under the Act. The petitioner was, therefore, called upon to show cause why the petitioner should not be regarded as the branch of M/s. Teknomech Engineers, a firm which was already granted registration. The petitioner showed cause and contended that the business of the two firms carried on was not the same. The Sales Tax Officer held that the partners of the petitioner-firm and M/s. Teknomech Engineers were identical and that in the circumstances of the case, the petitioner-firm must be held to be a branch of M/s. Teknomech Engineers, the firm which was already granted registration. The Sales Tax Officer, therefore, refused registration. Aggrieved by that order, the petitioner preferred a revision petition under Section 39(1) of the Act before the Deputy Commissioner of Sales Tax, who, by his impugned order, held that as the petitioner had not correctly given all the necessary information in the application form and had concealed material facts, the Sales Tax Officer was justified in rejecting the application. In this view of the matter, the Deputy Commissioner of Sales Tax dismissed the revision petition. Hence, the petitioner has filed this petition.

3. Shri Choudhary, the learned counsel for the petitioner, contended that as a firm is a juristic person under the provisions of the Act, merely because the partners of the petitioner-firm and M/s. Teknomech Engineers were identical, that fact by itself would not be sufficient for holding that the petitioner was a branch of M/s. Teknomech Engineers. It was contended that an enquiry should have been held into the question was to whether there as interlacing or interlocking of the business of the two firms for coming to the conclusion that the petitioner-firm was a branch of M/s. Teknomech Engineers. The learned counsel for the petitioner placed reliance on the decisions reported in Jeshinghbhai Ujamshi v. Commissioner of Income-tax, Bombay : [1955]28ITR454(Bom) and Commissioner of Income-tax, A. P.-III v. G. Parthasarathy Naidu & Sons : [1980]121ITR97(AP) .

4. Now, the question as to whether two firms constituted by identical partners form two taxable units or only one, for the purpose of assessment under the Act, is a vexed question, which we do not propose to examine in this case because that question does not arise out of the impugned order passed by the Deputy Commissioner. The order of the Deputy Commissioner of Sales Tax holding that the application of the petitioner for registration was rightly rejected is based on the ground that the petitioner had failed to give correct information in the application form and had tried to conceal therein material information. That the Deputy Commissioner of Sales Tax had jurisdiction to pass the impugned order was not disputed before us. It is, therefore, necessary to examine the question as to whether the impugned order is vitiated by any error apparent on the face of the record as to justify interference under Articles 226 and 227 of the Constitution.

5. Now, the material provisions of law are to be found in Section 15 of the Act and Rule 8 of the Rules framed thereunder, which are as follows :

Section 15 Registration of dealers.-(1) Every dealer, whose turnover during the twelve months immediately preceding the commencement of this Act exceeds the limits specified in Sub-section (5) of Section 4, shall get himself registered in the prescribed manner before such date as may be notified in this behalf.

(2) Every dealer other than a dealer to whom Sub-section (1) applies, shall be liable to get himself registered within the prescribed period from the date on which his turnover during the twelve months immediately preceding such date first exceeds the limits specified in Sub-section (5) of Section 4.

(3) Every dealer required by Sub-section (1) or Sub-section (2) or Sub-section (1) of Section 33 to be registered, shall make an application accompanied by a satisfactory proof of payment of fee of fifty rupees in that behalf in the prescribed manner to the Commissioner.

(4)(a) On receipt of the application,-

(i) the said authority shall, if it is satisfied that the application is in order, register the applicant and grant him a certificate of registration in accordance with such rules as may be made under this Act; and

(ii) if the said authority is not so satisfied, it shall reject the application, not later than ninety days from the date of receipt of the application.

(b) If the certificate of registration is not granted or the application is not rejected within the aforesaid period of ninety days, the applicant shall, on the expiration of the said period, be entitled to a certificate of registration in accordance with his application and the said authority shall issue a certificate of registration accordingly.

(4-A) The certificate granted under Sub-section (4) shall take effect from-

(a) in case where a dealer required to get himself registered under Sub-section (2) has applied for registration within the prescribed period, the date on which the turnover during the twelve months immediately preceding such date first exceeds the limits specified in Sub-section (5) of Section 4;

(b) in case where a dealer required to get himself registered under Sub-section (2) has applied for registration after the expiry of the prescribed period, the date on which he applies for registration;

(c) in case where a dealer required to apply for registration under Sub-section (1) of Section 33 has applied for registration within thirty days of the transfer of business the date from which the ownership of the business is entirely transferred to him; and

(d) in case where a dealer required to get himself registered under Sub-section (1) of Section 33, has applied for registration after the expiry of thirty days of the transfer of business, the date on which he applies for registration.

(5) Without prejudice to the provisions of Sub-section (6) of Section 18, when a dealer has, without reasonable cause failed to get himself registered within the prescribed time, as required by Sub-section (1) or Sub-section (2), the Commissioner may, after giving such dealer a reasonable opportunity of being heard, direct him to pay by way of penalty in addition to the fee payable, a sum not exceeding rupees one hundred.

(6) Every dealer, who at the commencement of this Act, holds a certificate of registration under the provisions of any of the Acts repealed by Section 52 or a licence issued under Section 6 of the Madlrya Bharat Sales Tax Act, Samvat 2007 (30 of 1950), shall, on such commencement, be deemed for all purposes of this Act to be a dealer registered and holding a certificate of registration under this section.

(7) Every dealer shall, until his registration is cancelled, be liable to pay in the manner and within the period prescribed a fee of rupees fifty for every financial year subsequent to that in which a certificate of registration is granted to him under Sub-section (4).

(8)(a) When a dealer makes an application for amendment of his certificate of registration in pursuance of the provisions of Section 32 or otherwise, the Commissioner shall, after making such enquiry, as he deems fit, amend the certificate of the dealer or reject the application for amendment within ninety days from the date of such application;

(b) When the certificate of registration of a dealer is amended under Clause (a), such amendment shall take effect from the date of application. Where the application for amendment is not rejected and the certificate is not amended within the time specified in Clause (a), the dealer shall be entitled to have the certificate amended in accordance with his application from the date of application for amendment and the registering authority shall amend the certificate accordingly; and

(9) When any dealer pays the amount of penalty imposed under Sub-section (5) or Sub-section (6) of Section 18, or is convicted or pays composition money under Section 47, in respect of any contravention of Sub-section (1) or Sub-section (2), the Commissioner shall register such dealer and grant him a certificate of registration and such registration shall, subject to the provisions of Clause (b) or Clause (d) of Sub-section (4-A), as the case may be, take effect from the date of issue of the certificate as if it had been made under Sub-section (4) on the dealer's application.

(10) When-

(a) a registered dealer discontinues or transfers his business; or

(b) the liability of a registered dealer to pay tax ceases in accordance with the provisions of Sub-section (3) of Section 4; or

(c) a registered dealer has been granted a certificate of registration by mistake;

(d) a registered dealer is in arrears of tax or penalty or any other sum due under this Act; or

(e) the Commissioner, for reasons to be recorded in writing, is of the opinion that the certificate of registration should be cancelled for any other reason,

the Commissioner may, either on his own motion or on the application of the dealer in this behalf, cancel the registration but notwithstanding such cancellation the dealer shall be liable to pay tax for the period during which the certificate of registration remained in force.

(11)(a) When a certificate of registration is cancelled under Sub-section (10) in any case other than of a dissolution of firm or entire transfer of the business of a dealer, the .dealer shall be liable to pay tax on his stock of goods remaining unsold at the time of cancellation of the certificate.

(b)(i) Any dealer, whose application for registration is rejected under Sub-clause (a) of Sub-section (4) for any reasons whatsoever excluding the reasons that the dealer is not required to get himself registered under Sub-section (3); or

(ii) any dealer, whose certificate is cancelled, under Clause (d) or Clause (e) of Sub-section (10),

he shall, for the purpose of Sub-section (6) of Section 18, be deemed to be a dealer who, has failed to apply for registration, but he shall not be liable to pay any penalty under the said Sub-section (6).

Rule 8. Grant of registration certificate.-(1) When the appropriate Sales Tax Officer or the authorised officer, as the case may be, after making such enquiry as he may think necessary, if satisfied that the applicant has correctly given all the requisite information, paid the prescribed fee and that the application is in order, he shall register the dealer and shall issue to him a certificate of registration in form IV within the period specified in Clause (a) of Sub-section (4) of Section 15.

(2) The fee payable under Sub-section (7) of Section 15 shall be paid by the dealer before furnishing return in form VIII for the quarter expiring immediately after the commencement of the financial year and copy of the treasury receipted chalan in proof of the payment of the fee shall be attached with the said return :

Provided that where a dealer has been permitted by the Commissioner to furnish a return in form VIII for any period other than a quarter, such fee shall be paid before furnishing the first return for the relevant period ending immediately after the commencement of the financial year :

Provided further that where any dealer applies for grant of a licence under Section 13 or files a declaration in a prescribed form under Section 28, the fee shall be paid by the dealer before such application is made or before such declaration is filed, as the case may be, and a copy of the treasury receipt chalan in proof of the payment of the fee shall be attached with the application or the declaration. (3) Where any dealer has already paid a fee of five rupees for the financial year beginning from the 1st April, 1978, before the commencement of the Madhya Pradesh Vitta Adiniyam, 1972 (20 of 1972), he shall pay the difference of rupees ten before furnishing the return, which becomes due first after the commencement of the Madhya Pradesh Vitta Adiniyam, 1972 (20 of 1972).

(4) When the appropriate Sales Tax Officer or the authorised officer, as the case may be, after making such enquiry as he. thinks fit, is not satisfied about the correctness of the information furnished in the application, he shall, after recording the reasons in writing, reject the application within the period specified in Clause (a) of Sub-section (4) of Section 15. An intimation about the rejection of the application stating reasons therefor shall be sent to the dealer within ten days of the date of passing the order rejecting the application.

From a perusal of the aforesaid provisions, it is clear that if the information furnished in the application is incorrect, the application is liable to be rejected. It was not disputed before us that the information furnished by the petitioner in the application that the partners of the petitioner had interest in no other business anywhere in India, was factually incorrect. It was, however, urged that the petitioner should have been informed that the information furnished by it was incorrect before rejecting the application. Now, the petitioner was in fact called upon by the Sales Tax Officer to show cause why the petitioner not be held to be a branch of M/s. Teknomech Engineers, another firm, necessarily implying thereby that the information furnished by the petitioner in the application was prima facie found to be incorrect. The petitioner did not dispute before the Sales Tax Officer or before the Deputy Commissioner that the partners of the petitioner were partners of another firm but contended that the business carried on by the two firms was not identical. It was thus admitted on behalf of the petitioner that incorrect information had been furnished by the petitioner in the application inasmuch as there was no disclosure of interest, of the partners of the petitioner in the other business carried on in the name and style, of M/s. Teknomech Engineers. In these circumstances, no further notice to the petitioner was necessary for rejection of its application for registration.

6. It was then contended that the satisfaction contemplated by Rule 8 of the Rules has got to be the satisfaction of the Sales Tax Officer and not that of the Deputy Commissioner. The contention cannot be upheld. Rule 8 does not contemplate subjective satisfaction of the Sales Tax Officer. If the information furnished in the application is found to be incorrect, on the basis of the material on record, the order of rejection passed by the Sales Tax Officer can be upheld by the Deputy Commissioner exercising powers under Section 39(1) of the Act, on the ground that Rule 8(4) of the Rules justified such rejection. As the impugned order is not shown to be vitiated by any error apparent on the face of the record no interference is called for under Article 226 or 227 of the Constitution.

7. The petition, therefore, fails and is accordingly dismissed. In the circumstances, parties shall bear their own costs of the petition. The security amount, if any, shall be refunded to the petitioner.


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