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2006 Supreme(Del) 2169
136 (2007) DELHI LAW TIMES 183 (DB)
DELHI HIGH COURT
Vikramajit Sen & S. Muralidhar, JJ.
U.B. ENGINEERING -Petitioner
Versus
COMMISSIONER OF SALES TAX & ORS. - Respondents
W.P. (C) 10851/2005 & CM No 7968 of 2005
Decided on 23.11.2006
For the Petitioner:Mr. Rajesh Mahna and Mr. Ram Anand Roy, Advocates.
For the Respondent:Mr. Raj K.Batra, Advocate.
The sufficiency of the E-II Form for relief under Section 6(2) of the CST Act is a question of fact, and the court will not reexamine such questions under Article 226 of the Constitution of India.
Headnote:
Sales Tax - Quashing of Order - Central Sales Tax Act, 1956 (CST Act) - Section 6(2) - 43(1991) DLT 376 (DB)=1991 (83) STC 485 (Delhi) - 110 STC 253 (Kerala) - 118 (2005) DLT 720=276 ITR I (Delhi)
Fact of the Case:
The petitioner, a company engaged in selling engineering and electronic goods, sought relief under Section 6(2) of the CST Act for subsequent sales governed by the Act. The petitioner was unable to furnish the requisite declaration in the E-II form from its suppliers and the requisite declaration in c form from its customers, resulting in penalty and assessment.
Finding of the Court:
The court found that the E-II Form produced by the petitioner was defective in material particulars, and the Appellate Tribunal's decision to reject the claim was not legally unsustainable. The court dismissed the writ petition.
Issues: The issues involved the petitioner's failure to furnish the requisite declarations and the sufficiency of the E-II Form for relief under Section 6(2) of the CST Act.
Ratio Decidendi: The court held that the determination of the sufficiency of the E-II Form was a question of fact, and the Appellate Tribunal's decision was not legally unsustainable. The court also emphasized that the material particulars concerning the movement of goods in the E-II Form were missing, and the decisions cited by the petitioner were distinguishable on facts.
Final Decision: The writ petition was dismissed with no orders as to costs.
1. This writ petition seeks the quashing of an order dated 25.2.2005 passed by the Appellate Tribunal, Sales Tax, Delhi in Rev-34/SIT/04-05 in Appeal No. 403/STT/03-04.
2. The facts in brief are that the petitioner company, engaged in the business of selling engineering and electronic goods in Delhi, is registered under the Delhi Sales Tax Act, 1975 as well as the Central Sales Tax Act, 1956 (CST Act). The petitioner purchases goods from the various suppliers outside Delhi in the course of inter-State trade and commerce. While such goods are in transit, the documents pertaining to the consignment are endorsed in favour of the local purchasers. Since such transactions are subsequent sales, they would be governed by Section 6(2) of the CST Act and would be exempted from tax provided that the local dealer, like the petitioner herein, submits to its Assessing Officer a c Form obtained from the purchaser and an E Form obtained from the supplier.
3. In the instant case, in respect of the Assessment Year 1998-99, the petitioner was assessed on 30.3.2001 by the learned Notified Authority (Ward-89) and the tax payable under the CST Act and the interest payable thereon was determined. A penalty was also levied since the petitioner was unable to furnish the requisite declaration in the E-II form from its suppliers and the requisite declaration in c form from its customers in support of its claim for relief under Section 6(2) of the CST Act, on a turnover of Rs. 1,64,28,383/-.
4. The petitioner filed an appeal against an order dated 30.3.2001 before the Additional Commissioner. The petitioner was, at this stage, able to produce the c Form but not the E Form. Therefore, by an order dated 28.11.2003, the learned Additional Commissioner granted partial relief to the petitioner while rejecting the relief sought under Section 6(2) of the CST Act.
5. The further appeal preferred by the petitioner against the said order dated 28.11.2003 was dismissed by the Appellate Tribunal, Sales Tax, Delhi on 30.7.2004. Since no one appeared for the petitioner, the Appellate Tribunal proceeded ex-parte and dismissed the appeal on merits after hearing the Counsel for the Department.
6. The petitioner then filed an application before the learned Tribunal seeking review of an order dated 30.7.2004. This review petition was dismissed by an order dated 9.9.2004. Thereafter, the petitioner moved a further application in December 2004 where it now stated as under:
"The appellant received the order of the Additional Commissioner of Sales Tax passed by him on 28.11.2003 and till then the appellant had not received the E-II form which is evident from the form itself. The form EII was issued to AVN Engg. Co. on 29.12.2003 by the Sales Tax Department Ward 55, New Delhi. The said evidence could not be considered by the Additional Commissioner for grant of relief."
Accordingly, it was prayed before the Tribunal:
That the Tribunal be pleased to suo motu grant relief by way of the orders to allow and entertain the relief under Section 6(2) of the Central Sales Tax Act on production of E-II form in addition to relief already granted by Additional Commissioner."
7. The Tribunal perused the copy of the certificate in E-II form stated to have been issued to Mis. AVN Engineering Pvt. Ltd. (a registered dealer of Ward-55) and held as under:
"The certificate is undated. It does not indicate the place and state from which the movement of the goods sold on various dates from 7.5.98 to 31.10.98 commenced in column C(i). It does not indicate the place and state to which the goods in question had been considered in column C(ii). While it indicates the number and date of the declaration in Form C received from the appellant company to be DP 0930319 dated 24.5.2002. it does not indicate the number and date of the railway receipt, trip sheet of lorry or any other document of other means of transport in column D(iv) so that the date of commencement of inter-State movement can be ascertained
