HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
T.R.C.NO.90 OF 2005 & TREVC NO.11 OF 2006
COMMON ORDER: (per Hon'ble Sri Justice Laxmi Narayana Alishetty)
We have heard Sri A.K.Jaiswal, learned counsel for the
petitioner and Sri K.Raji Reddy, learned senior Standing
Counsel for the respondents.
2. T.R.C.No.90 of 2005 is filed challenging the order dated 25.11.2005 passed in T.A.No.474 of 2004, which arises from final assessment order for the assessment year 2000-01 dated 11.03.2004. T.Rev.C.No.11 of 2006 is filed challenging the order dated 25.11.2005 passed in T.A.No.617 of 2004, which arises from penalty proceedings of the Assessing Officer for the assessment year 2000-01 dated 31.03.2004. Since both the matters are inter-connected, the same are being decided by this common order.
T.R.C.NO.90 OF 2005:
3. The present revision case is filed by the petitioner aggrieved by the order of the Sales Tax Appellate Tribunal (for PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 2 short, 'Appellate Tribunal'), dated 25.11.2005 in T.A.No.474 of 2004.
4. By the impugned order, the Tribunal confirmed the levy of higher rate of tax on the direct inter-state sales to which C-forms were filed. The Appellate Tribunal, by majority decision, had confirmed the order of the rejection of the Assessing Authority on the claim of concessional rate of tax in respect of C-forms.
5. The brief facts leading to filing of the present revision are as under:
6. The petitioner is the registered dealer dealing in manufacture of refined oils. The petitioner purchases raw crude oil within and outside the State of Andhra Pradesh as well as import crude oil from outside the country and manufactures refined oil and sells the same within and outside the State of Andhra Pradesh. Petitioner filed audit report for the assessment year 2000-01 (CST) as required under A.P.G.S.T. Act and the Rules and claimed exemption on a turnover of Rs.7,78,78,963/- on consignment sales.
PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 3
7. The Assessing Authority i.e., Deputy Commissioner (CT), Charminar Division, after investigating into the said transaction of consignment sales and relying upon the information gathered by the investigating team, had issued show-cause notice dated 07.02.2002 to the petitioner. A revised show-cause notice dated 13.02.2002 and further, show-cause notice dated 27.01.2004 was also issued, to which petitioner submitted detailed reply along with voluminous material evidence running into 470 pages. However, the Assessing Authority vide order dated 11.03.2004 passed final assessment order for the year 2000- 01 demanding payment of balance tax of Rs.49,45,929/-.
8. Aggrieved by the same, petitioner preferred appeal before the Sales Tax Appellate Tribunal vide T.A.No.474 of 2004 along with stay application vide TMP No.152 of 2004. The Sales Tax Appellate Tribunal vide order dated 24.02.2005 in TMP No.152 of 2004 passed conditional order directing the petitioner to pay a sum of Rs.10.40,000/-. Petitioner challenged the said order before this Court in W.P.No.6649 of 2005. This Court vide its order dated 29.03.2005 directed the petitioner to deposit a sum of Rs.3,15,000/- as petitioner had PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 4 already deposited an amount of Rs.1,80,000/- pending appeal before the Appellate Tribunal and directed the Tribunal to dispose of the appeal within two months from the date of the order. Thereafter, the Tribunal passed impugned order dated 25.11.2005, which is under challenge.
9. The learned counsel for the petitioner submitted that the Assessing Authority, while passing order dated 11.03.2004 did not consider the reply along with voluminous material submitted by the petitioner. Learned counsel further submitted that the Appellate Tribunal without appreciating and considering the voluminous documents filed by the petitioner, had confirmed the order of the Assessing Authority. He further submitted that the Appellate Authority was not right in confirming the order of the assessing authority, who did not follow the principles of natural justice since no reasonable opportunity was afforded to the petitioner to rebut the evidence gathered by the Department nor was any opportunity was given to the petitioner to cross- examine the Agents from whom the Department was alleged to have collected statements.
PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 5
10. He further submitted that the Appellate Tribunal was not right in coming to the conclusion that the petitioner had not furnished any documentary evidence in support of its claim despite the petitioner placing voluminous documentary evidence along with reply before the Assessing Authority, which includes sale patties, evidence of dispatch of goods, mode of payment etc., which show that the transaction is otherwise than by way of sale as contemplated under Section 6A of the CST Act. He also submitted that the members of Sales Tax Appellate Tribunal have passed three different conflicting orders relating to factual aspects of the case. He further contended that the material gathered by the Department during the course of investigation was not made available to the petitioner to enable them to rebut and the same is gross violation of the principles of natural justice.
11. During the course of hearing, learned counsel for the petitioner had referred to the order passed by the Appellate Tribunal in great detail and also the conflicting observations of the members of the Appellate Tribunal and finally submitted that despite placing voluminous documents including C-forms, F-Forms, the same were not considered by the assessing PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 6 authority as well as the Appellate Tribunal. He finally prayed to allow the Revision and set aside the order of the Appellate Tribunal. The learned counsel for the petitioner had also relied upon the judgment of this Court in case of M/s. J.R.Exports v. The Deputy Commissioner (CT) and others 1 in support of his contentions.
12. Per contra, learned Senior Standing Counsel for the respondent would submit that that the order passed by the Appellate Tribunal is proper and the same was passed on due consideration of the material as well as Rules of APGST, 1957. He has specifically referred to Section 6A of CST Act, as per which, when the dealer claims that he is not liable to pay tax in respect of the goods sent from one State to another State i.e., to any other place of his business, or to his agent or principal, as the case may be and not by reason of sale, the burden of proving the same is on the dealer.
13. Learned senior standing counsel further contended that since the burden is on the dealer and he has to prove the same either by way of Form-F or any other documentary evidence to show that the transaction is otherwise than by way of sale and 1 2017 SCC Online Hyd 523 PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 7 also evidence of dispatch of goods. He further contended that in the present case, petitioner did not produce evidence and thus, failed to discharge his burden and on the other hand, the assessing authority had enquired into the matter as well as the material placed by the petitioner and having not satisfied with the same, the assessing authority has rightly passed final assessment order and finally prayed for dismissal of the Revision.
CONSIDERATION:
14. On careful consideration of the facts and material placed, this Bench is of the view that the Tribunal has recorded detailed reasons for its findings both on facts and law.
15. It is relevant to extract Section 6A of the CST Act, which reads as under:
"S.6A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. --
(1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 8 this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods 2 [and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale].
(2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) 3 [are true and that no inter-State sale has been effected, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall, subject to the provisions of sub- section (3)] be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale. Explanation. --In this section, "assessing authority", in relation to a dealer, means the authority for the time being competent to assess the tax payable by the dealer under this Act. (3) Nothing contained in sub-section (2) shall preclude reassessment by the assessing authority on the ground of discovery of new facts or revision by a higher authority on the ground that the findings of the assessing authority are contrary to law, and such reassessment or revision may be done in accordance with the provisions of general sales tax law of the State.
PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 9
16. As per clause (1) of Section 6A, a dealer who claims to have effected consignment transfers, either must file F-form or any other documentary evidence to show that the transaction is otherwise than by way of sale and also the evidence of despatching of the goods. Clause (2) of Section 6A contemplates that the assessing authority can take up enquiry to ascertain whether the particulars contained in the documentary evidence produced and whether the particulars contained in Form-F filed are correct or not. Therefore, as per clause (1) of Section 6A, the burden is on the dealer to prove that the movement of the goods was not because of sale, but was for transfer of such goods by him to any other place of business or to his agent or principal outside the State.
17. The Appellate Tribunal considered and relied upon the following judgments:
i) Assam Company (India) Ltd., vs. Commissioner of Taxes, Assam, Gowahati and others 2;
ii) Commercial Tax Officer, Anti Evasion, Alwai v. Goodwill Paint Industries 3;
iii) CPK Trading Co. V. Addl.Sales Tax Officer, III Circle, Maltanchery and another 4;2
107 STC 154 3 117 STC 71 4 76 STC 211 PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 10
iv) Ashok Leyland v. State of Tamilnadu 5;
v) Jay Industries v. State of A.P. 6.
18. The Appellate Tribunal, on due consideration of facts, material, and settled legal position, has come to a conclusion that in terms of clauses (1) and (2) of Section 6A, the burden is cast on the petitioner to prove that the goods have moved otherwise than by way of sales. It is not in dispute that the petitioner has not furnished/produced any documentary evidence while filing CST returns in proof of claim of exemption. Only when the assessing authority has taken up investigation/enquiry, the petitioner had adduced some documentary evidence. Therefore, the burden so cast on the petitioner to prove that the transactions were effected by it are otherwise, than by way of sale has not been discharged initially at the time of filing of returns.
19. Perusal of the order passed by the Appellate Tribunal clearly reflects that the Appellate Tribunal had considered both factual and legal aspects, recorded elaborate reasons while allowing the appeal and also referred to and relied upon various judgments for its conclusion. The Appellate Tribunal had also 5 134 STC 473 6 14 APSTJ 140 PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 11 discussed the purport of Section 6A of CST Act as well as Rule 14(3) of under CST Act (A.P.) Rules, 1957 and finally, confirmed the order of rejection of the assessing authority on the claim of concessional rate of tax in respect of C-forms.
20. The judgment relied upon by the learned counsel for petitioner no way help the contention of the learned counsel since the facts of the said case are different and the same are distinguishable with the facts of present case.
21. In considered opinion of this Bench, the submissions made by the learned counsel for petitioner as well as the observations of the Appellate Tribunal referred to by the learned counsel for petitioner are all in factual in nature and further, learned counsel for petitioner failed to point out the question of law to be considered by this Bench and therefore, the Revision fails.
CONCLUSION:-
22. In view of the facts explained above, the petitioner failed to make out any case warranting interference of this Bench with the order passed by the Sales Tax Appellate Tribunal.
23. For all the aforesaid reasons, we are of the firm view that the question of law framed by the Court, while admitting the PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 12 revision, deserves to be decided in the negative. Thus, the TRC No.90 of 2005 deserves to be and is accordingly dismissed, confirming the order of the Appellate Tribunal. T.Rev.C.No.11 OF 2006:
24. This case is filed challenging the order dated 25.11.2005 of the Appellate Tribunal passed in TA No.617 of 2004. By the impugned order, the Appellate Tribunal confirmed the penalty proceedings of the assessing authority, i.e., Deputy Commissioner (CT), Charminar Division dated 31.03.2004. The penalty proceedings dated 31.03.2004 challenged under this revision are consequential to the final assessment order dated 11.03.2004.
25. Since, T.R.C.No.90 of 2005, which is filed challenging the final assessment order dated 25.11.2005, is dismissed, consequently, T.Rev.C.No.11 of 2006, which is filed challenging the consequential penalty proceedings also fails and is accordingly dismissed.
26. In the result, both Revision Cases are dismissed. There shall be no order as to costs.
PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 13
27. Pending miscellaneous applications if any, shall stand closed.
__________________________________ P.SAM KOSHY, J ___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 11.09.2023 Kkm PSK,J & LNA,J TRC No.90 of 2005 & TREVC No.11 of 2006 14 HONOURABLE SRI JUSTICE P.SAM KOSHY AND HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY T.R.C.NO.90 OF 2005 & TREVC NO.11 OF 2006 Date: 11.09.2023 kkm