M/S Sony India Pvt. Ltd. Thru' Its ... vs State Of U.P. & 2 Others
2015 Latest Caselaw 4177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 37
 
Case :- WRIT TAX No. - 896 of 2015
 
Petitioner :- M/S Sony India Pvt. Ltd. Thru' Its Auth. Signatory
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Gaurav Mahajan,Amit Mahajan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Vinod Kumar Misra,J.

We have heard Sri S.D. Singh, the learned senior counsel along with Sri Amit Mahajan and Sri Gaurav Mahajan, the learned counsel for the petitioner and Sri C.B. Tripathi, the learned Special Counsel for the State.

The petitioner is engaged in the business of trading of electronic products and imports its products from outside the territory of India. The goods are brought into the State of Uttar Pradesh and stocked in a warehouse located at NOIDA in U.P. from where the stocks is alleged to be transferred to other branches of the petitioner located in other states. For the purpose of stock transfer, the petitioner has been transferring the goods to other States during the months of April, May and June, 2015. In this regard, petitioner was required to submit necessary Form-C and Form F issued from the respective authorities of other States where the goods were transferred. Since the forms were not submitted within the stipulated period of three months, a show cause notice dated 5.10.2015 under Section 25 (1) of the U.P. VAT Act read with Section 9 (2) of the Central Sales Tax Act was issued to show cause why the provisional assessment should not be made. The petitioner submitted its reply and also filed an application dated 15.10.2015 for extension of time. The Assessing Officer without considering the application for extension of time passed three provisional assessment orders dated 28th October 2015 for the months of April, May and June, 2015. The petitioner, being aggrieved, with these provisional orders has filed the present writ petition for its quashing.

A preliminary objection was raised by the State contending that the petitioner has a remedy of filing an appeal under Section 55 of U.P. VAT Act and, therefore, the Court should not exercise its discretionary jurisdiction in entertaining the writ petition under Article 226 of the Constitution.

In support of his submission, the Special Counsel for the State has placed reliance upon a decision of the Supreme Court in Untied Bank of India Vs. Satyawati Tondon and others (2010) 8 Supreme Court Case 110 wherein the Supreme Court has held that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute should be availed of instead of filing a writ petition under Article 226 of the Constitution.

We have no quarrel with the proposition propounded by the Supreme Court in the aforesaid decision but the rule of exhaustion of alternative remedy is only a rule of discretion and not one of compulsion. In appropriate cases, prerogative writs could be issued. Normally, the Court is not exercising its discretionary jurisdiction if an efficacious alternative remedy is available. But, in the instant case, we find that no factual dispute is involved and the matter can be disposed of at the admission stage itself without calling for a counter affidavit.

We are of the opinion that in financial matters, if the matter can be disposed of at the initial stage itself, it would be better not only for the assessee but also for the State otherwise filing of an appeal praying for an interim relief and thereafter the matter remains pending for a considerable period of time keeps the financial liability in a state of flux. We are of the opinion that if a finality is arrived at, it would subserve the interest of both the parties.

Considering the financial liability, which has been fastened upon the petitioner pursuant to the provisional assessment order that has been passed on 28th October 2015, we are of the opinion that in the facts and circumstances of the present case, which would be referred hereinafter, it is appropriate for this Court to exercise its discretionary jurisdiction and entertain the writ petition. We, consequently, reject the preliminary objection.

We find from the perusal of the impugned order that adjustment of Form C that was filed along with reply was not considered on the sole ground that it was filed after the stipulated period of three months, which period has been provided under Sections 6 A of Central Sales Tax Act, 1956 read with Rule 12 (7) of the Central Sales Tax (Registration and Turnover) Rules, 1957. We also find that the application of the petitioner for extension of time to file the requisite declaration forms was rejected on the ground that it was not filed within the stipulated period. In our view, these two grounds are patently erroneous. For facility Section 6 A(1) of the Act and Rule 12 (7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 are extracted as under:

Section 6 A(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 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, 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.

Rule 12 (7):

"The declaration in Form C or From F or the certificate in Form E-I or From E-II shall be furnished to the prescribed authority within three months after the end of the period to which the declaration or the certificate relates:

Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause form furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit."

Section 6 A of the Central Sales Tax Act, 1956 provides that the Forms are required to be furnished before the assessing officer within the prescribed time or within such further time as the authority may permit. From this it is clear that the provision to file the Forms within three months is not mandatory and that time can be extended for sufficient cause. Section 6-A of the Act further provides that if dealers fails to furnish such declaration, in that event the movement of goods would be deemed to have occasioned as the result of sale. In view of this provision, it is apparently clear that the notice that was issued by the assessing officer was valid and that the officer had jurisdiction to pass a provisional assessment order under Section 25 (1) of the U.P. VAT Act.

A perusal of the Section 6 A and Rule 12 (7) further indicates that it allows the assessee to file an application seeking extension of time for furnishing such declaration Forms. Once such an application is filed before the authority, it is the discretion of the authority to grant time in the facts and circumstances of that case. The said provision does not indicate that the application for extension of time is required to be filed within the stipulated period of three months. In our view, the application for extension of time can be filed even after the expiry of three months. Further declaration Forms can be filed at any stage of the proceedings, which has to be considered by the authorities normally either by the assessing authority or by the appellate authority as the case may be. The declaration Form, if filed on or before the assessment order is passed is required to be considered by the assessing authority. In the instant case, some of the Forms were filed along with the reply, which were required to be considered by the assessing authority, which in the instant case has not been done and the assessing authority has rejected the same on a flimsy ground that the Forms were filed after the period of three months. Normally, assessment orders are passed after the end of financial year and Forms filed on or before the conclusion of the assessment order would be considered by the assessing authority. Consequently, on this analogy the assessing officer committed an error in holding that he would not consider the Form, which has been filed after the stipulated period of three months. Looking from the another angle, Section 6 A (1) and the proviso to Rule 12 (7) of the Rules indicates that the period of three months can be extended and therefore it is not a mandatory provision making it obligatory upon the assessee to file the requisite forms within the stipulated period of three months. Forms can be filed even after the period of three months. In view of the aforesaid, we are of the opinion that the provisional assessment order cannot be sustained and is, accordingly, quashed.

The writ petition is allowed.

Before us a supplementary affidavit has been filed indicating that after passing of the provisional assessment order various authorities of other States have issued From F and the private dealers, who were registered have also submitted Form C. Since we have set-aside the provisional assessment order, we direct the assessing officer to pass a fresh order after considering the Forms already filed before him and such other Forms to be filed on or before 4th December, 2015. The assessing Officer upon receipt of such Forms will pass a fresh order after giving an opportunity of hearing to the parties concerned.

Order Date :- 18.11.2015

A. Pt. Singh

(Vinod Kumar Misra, J.) (Tarun Agarwala, J.)