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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.Nagaresh, J.
M/s BPL Ltd. – Petitioner
Versus
State of Kerala, Represented By Its Secretary to Government, Taxes Department And Ors. – Respondents
WP(C) NO. 23291 of 2016
Decided On : 26-07-2022
Central Sales Tax Act, 1956 - Section 6A - Central Sales Tax (Registration and Turnover) Rules, 1957 - Rule 12(7) – Central Sales Tax Act, 1956 - Kerala Value Added Tax Act, 2003 – Writ petition - Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale — Whether petitioner had sufficient cause to produce declarations belatedly - Whether petitioner was prevented by sufficient cause from producing declarations – To contend that when statute provides a mechanism for assessees to produce proof to show that a transaction is one of simple transfer and not one of sale, assessee should stick to manner in which proof is to be produced. (Para 9).
Findings of the Court :
Court is of firm view that when authority is empowered by CST Rules to accept belated filing of Forms-F, authority has to exercise said power in a just, equitable and judicious manner - Empowerment under proviso to Rule 12 is intended to arrive at a fair assessment of tax, without sticking totechnicality of limitation, when an assessee submits Form-F after stipulated time for justifiable reason/s - Hence, when petitioner produced Exts.P3 and P4 Forms-F before reassessment, 2nd respondent should have considered whether petitioner was prevented by sufficient cause from producing declarations.
Result : Writ petition allowed.
JUDGMENT :
The petitioner, an incorporated Company and an assessee under the Central Sales Tax Act, 1956 and the Kerala Value Added Tax Act, 2003, is before this Court seeking to quash Ext.P5 and to direct the 2nd respondent-Assistant Commissioner of Commercial Taxes to consider an assessment afresh, after affording an opportunity of hearing to the petitioner.
2. The petitioner states that the 2nd respondent completed assessment of the petitioner under the Central Sales Tax Act, 1956 for the year 2013-'14 by assessing the turnover of inter-State stock transfer at Rs.20,00,95,588/-at the rate of 5% for non-production of Form-F, as per Ext.P1 Assessment Order dated 12.10.2015. The said assessment was made overlooking the fact that the officer who initiated assessment had given time to the petitioner for producing Form-F.
3. The petitioner hence filed W.P.(C) No.38553 of 2015, which was disposed of by this Court as per Ext.P2 judgment dated 18.12.2015 permitting the petitioner to file Form-F within one week and directing the 2nd respondent to reassess the tax. The petitioner produced Form-F to the tune of Rs.15,52,67,558/- within one week, by 25.12.2015. The petitioner further produced Form-F for Rs.66,05,067/- as per Ext.P3 letter dated 07.01.2016 and for Rs.46,88,916/- as per Ext.P4 letter dated 21.01.2016. The 2nd respondent passed Ext.P5 fresh assessment order dated 30.03.2016, considering Form-F for Rs.15,52,67,558/- only.
4. Exts.P3 and P4 Forms-F were ignored while passing Ext.P5. The petitioner hence filed Ext.P6 rectification application dated 22.06.2016. The petitioner states that apart from Exts.P3 and P4, the petitioner holds Form-F for turnover of Rs.1,03,38,782/-and Rs.22,13,327/-, as detailed in Ext.P7 Statement. The petitioner states that the non-production of Forms-F in time was for reasons beyond the control of the petitioner. From 2013-'14, the operation of Palakkad Unit of the Company was completely discontinued and all assessment related work had to be handled from Bangalore. It was difficult for the petitioner to retrieve Forms from the closed Unit at Palakkad. The 2nd respondent has passed Ext.P5 order in a mechanical manner.
5. Government Pleader entered appearance and resisted the writ petition. The petitioner has an alternate remedy against the assessment order, it was pointed out. The case of the petitioner does not fall under any of the exceptions to the rule of alternate remedy reiterated by the Hon’ble Apex Court in Genpact India Private Limited v. Deputy Commissioner of Income Tax and another [2019 SCC OnLine SC 1500], urged the Government Pleader.
6. This Court, in Ext.P2 judgment dated 18.12.2015, granted one week time to the petitioner to make available Form-F with a rectification application. The respondents were directed to pass a fresh assessment order expeditiously. The period stipulated by this Court for submission of Form-F expired on 25.12.2015. The petitioner produced Form-F only for a turnover of Rs.15,52,67,558/-, which was taken into account while passing Ext.P5 order.
7. The 2nd respondent is not bound to consider any Form-F produced by the petitioner subsequently. This Court, in Ext.P2 judgment, directed that a fresh assessment “shall be made expeditiously”. Hence, Ext.P5 order was passed on 30.03.2016. The petitioner has to blame itself for non-production of Forms even within the extended time.
8. The Government Pleader pointed out that in the judgment in Kochi Refineries Ltd. V. State of Kerala [2011 (4) KLT SN 123], this Court has held that the Tribunal has no powers to grant indefinite time to obtain C Forms for production at any time the Dealer wants. In the judgment in ST(Rev) No.28 of 2016, a Division Bench of this Court imposed heavy costs on the assessee for failure for production of C Forms in time.
9. The Government Pleader relied on the judgment of the Hon’ble Karnataka High Court in New Kiran Cashews v. Union of India and others [(2007) 9 VST 220 (Karn.)] to contend that when sta
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