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2009 Supreme(All) 3676
[2010(1) ADJ 631 (DB)]
ALLAHABAD HIGH COURT
BEFORE : SUNIL AMBWANI AND VIRENDRA SINGH, JJ.
M/s. A.C.P.L. JEWELS PRIVATE LTD. .....Petitioner
Versus
UNION OF INDIA AND OTHERS .....Respondents
(Civil Misc. Writ Petition (Tax) No. 1190 of 2008 Connected with Civil Misc. Writ Petition (Tax) Nos. 2017, 2054, 1991, 1992, 2098, 1787, 2162, 2281 of 2008, 60, 64, 78, 186, 201, 222, 223, 224, 276, 247, 248, 333, 401, 380, 408, 407, 422, 291, 292, 521, 568, 786, 790, 789, 809, 811, 810, 839, 868, 869, 876, 864, 888, 889, 930, 939, 1204, 1205, 993, 1078, 986, 1159, 1237, 1249, 1257 of 2009, 2053, 2280 of 2008, 1178, 1179 of 2009, 1326, 1331, 1332, 1384, 1394, 1420, 1422, 1267, 1277, 1930 of 2008, 27, 493, 612, 626, 670, 807, 1063, 1079, 1274, 1275, 1281, 1284 of 2009, 1191, 1320, 1596, 1651 of 2008, 1291, 1292, 1306, 1307, 1315, 1317, 1324, 1349, 1352, 1363, 1364, 1365, 1371, 1374, 1380, 1415, 1416, 1423, 1431, 1454, 1465, 1490, 1491, 1493, 1494, 1503, 1514, 1515, 1569, 1570, 1652, 1653, 1654, 1655, 1665, 1666, 1593, 1594, 1631, 1638, 1644, 1645, 1647, 1669, 1670, 1679, 1685, 1474, 1477, 1534,1536, 1544, 1545, 1545, 1549, 1556, 1557, 1558, 1559, 1466, 1471, 1477, 1478, 1506, 1584, 1586, 1607, 1608, 1611, 1674, 1701, 1702, 1712, 1714, 1718, 1729, 1730, 1765, 1786, 1787, 1788, 1789, 1817, 1818, 1828, 1837, 1838, 1859, 1863, 1864, 1901, 1902, 1903, 1904, 1905, 1907, 1935, 1939, 1951, 1952, 1983, 2002, 2003, 2029, 2030, 2035, 2037, 2052, 2113, 2139, 2196, 2220, 2221 and 2223 of 2009, decided on 1st December, 2009)
Counsel :
Bharat Ji Agrawal, Rahul Agarwal, Navin Sinha, Nishant Mishra, N.C. Gupta, Ashok Kumar, Praveen Kumar, Rishi Raj Kapoor, Krishna Agarwal, Saurabh Srivastava, Udai Chandani, Ankur Tandon, Rakesh Pande, Vishwajeet, Nikhil Agrawal for the Petitioners; S.P. Kesarwani, Shambhu Chopra for Respondents.
Headnote:U.P. Trade Tax Act, 1948—Section 21(2)—Central Sales Tax Act, 1956—Sections 6, 6-A—Assessment orders—Re-assessment orders—On transactions of Job work and goods returned—In which assessing authority has assessed, or proposed to assess liability of tax following judgment in Ambica Steels Ltd.—Challenged by petitioners—Orders of assessing authority following judgment in Ambica Steels on ground that since “Form F” of C.S.T. have not been produced, no other evidence is required to be considered for determining tax liability on sales/trade activities carried out by petitioners—Apex Court clearly laid down that under Section 6-A burden would be on dealer to show that movement of goods had been occasioned not by reason of any transaction involving sale of goods, but by reason of transfer of such goods to any other place of business, or to agent, or principal, for which dealer is required to furnish prescribed declaration form, in absence of which transfer would be treated as sale—Admittedly, what petitioners sends,or receives, either for job works or as return of goods from outside U.P., are goods within Central Act—They are claiming that goods have been transferred/received from ex-U.P. which are not sale and not liable to tax under Section 6 of Act of 1956—As petitioners have claimed that they are not liable to furnish declaration Form F, and Court held that they are liable, assessing authorities were directed to accept declaration Form F of petitioners if they file within 3 months and to grant exemption—Therefore, Court dismissed writ petitions and accordingly gave certain directions. [Paras 1, 2 and 17]
Result; Order Accordingly.
By the Court.—In all these writ petitions, the petitioners have challenged the assessment orders; re-assessment orders and notices under Section 21 (2) of the U.P. Trade Tax Act, for relevant assessment years, by the Trade Tax Department, on the transactions of job-work and goods-returned treated as sales under Section 6-A of the Central Sales Tax, and in which the assessing authority or the reassessing authority has assessed or has proposed to assess the liability of Tax following the judgment in Ambica Steels Limited v. State of U.P. and others, 2008 12 VST 216 (All) on the ground that since ‘Form F’ of the Central Sales Tax have not been produced, no other evidence is required to be considered for determining the tax liability on the sales/trade activities carried out by the petitioners.
2. In Ambica Steels (supra), a Division Bench of this Court has held as follows :
“The provisions of Sections 6 and 6A of the Central Act came up for consideration in the case of Ashok Leyland Ltd. v. State of T.N. and another, (2004) 3 SCC 1. Dealing with Sections 6 and 6A of the Central Act, the Apex Court, in paragraph 43 of the report, has held as follows :
“Section 6 of the Act provides for liability to tax on inter-State sales in terms whereof every dealer is liable to pay tax thereunder on sales effected by him in the course of inter-State trade or commerce subject to the exception contained in the proviso appended thereto. Such tax would be leviable notwithstanding the fact that no tax is leviable either on seller or the purchaser under the State tax laws of the appropriate State if that sale had taken place inside the State.”
In paragraph 44 of the report, the Apex Court has further held as under :
“44. The liability to tax on inter-State sale as contained in Section 6 is expressly made subject to the other provisions contained in the Act. Sub-section (2) of Section 9, on the other hand, which is a procedural provision starts with the words “subject to the other provisions of this Act and the rules made thereunder”. Section 6-A provides for exception as regard the burden of proof in the event a claim is made that transfer of goods had taken place otherwise than by way of sale. Indisputably, the burden would be on the dealer to show that the movement of goods had occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of his business or to his agent or principal, as the case may be. For the purpose of discharge of such burden of proof, the dealer is required to furnish to the assessing authority within the prescribed time a declaration duly filled and signed by the principal officer of the other place of business or his agent or principal. Such declaration would contain the prescribed particulars in the prescribed form obtained from the prescribed authority. Along with such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event, if it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale. Such declaration indisputably is to be filed in Form F. The said form is to be filled in triplicate. The prescribed authority of the transferee State supplies the said form. The original of the said form is to be filed with the transferor State and the duplicate thereof is to be filed before the authorities of the transferee State whereas the counterfoil is to be preserved by the person where the agent or principal of the place of business of the company is situated.”
In paragraph 47 of the report, it has further held as under :
“47. By reason of sub-section (2) of Section 6-A, a legal fiction has been created for the purpose of the said Act to the effect that transaction has occasioned otherwise than as a result of sale.”
The Apex Court has, therefore, clearly laid down that, under Secti
