M/S. Masters Aluminium India ... vs The Commercial Tax Officer,
2021 Latest Caselaw 253 AP

       HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                         AND
           HON'BLE MS. JUSTICE J. UMA DEVI

                 WRIT PETITION No.1551 of 2021

ORDER: (per UDPR,J)

      The petitioner seeks writ of mandamus declaring the impugned

endorsement dated 08.01.2021 in TIN No.37494862982, issued by the

1st respondent rejecting the 'F' forms filed by the petitioner as

arbitrary, violative of principles of natural justice and contrary to Rule

12(7) of the CST (R&T) Rules, 1956 and also various judicial

pronouncements and for a consequential direction to

1st respondent to receive the 'F' forms and grant exemption on the

turnover covered for the subject period.

2. The petitioner's case succinctly is thus:

(a) The petitioner is a registered dealer under A.P. VAT Act, 2005

and the Central Sales Tax Act, 1956, on the rolls of the 1st respondent

and doing business in manufacture of Aluminium Products. During

Assessment Year 2014-15, the petitioner claimed exemption on a

turnover of ₹4,82,83,384/- as 'Inter State Consignment Sales' and

filed way bills, transfer invoices, sale patties issued by the

consignment agent in support of its claim. However, as its

consignment agent M/s.Ramkishor & Sons, Cochin, had closed its

business in India and left the country without furnishing 'F' forms to

the petitioner, the petitioner could not file the 'F' forms in time but

was trying to trace out the whereabouts of his consignment agent to

obtain 'F' forms.

(b) In the meanwhile, the Assistant Commissioner (CT), (Audit)

No.1 Division, Vijayawada, who was not the jurisdictional assessing

authority of the petitioner, on authorization from the Deputy

Commissioner (CT), No.1 Division, Vijayawada, conducted audit on

the petitioner and on further authorization passed assessment order for

the tax period June, 2014 to March, 2015 under the A.P. VAT Act,

2005, wherein he imposed tax on the said 'Inter State Consignment

Sales' turnover under the A.P. VAT Act, treating the same as local

sales in Andhra Pradesh.

(c) Aggrieved, the petitioner filed a statutory appeal No. VJA-

1/55/2016-17, before the Appellate Commissioner (CT), Vijayawada,

which was disposed of on 26.11.2018, by remanding the matter to the

1st respondent herein who is the jurisdictional assessing authority of

the petitioner, with a direction to cause de novo verification of all the

related records and accounts and pass orders accordingly after

affording the petitioner a reasonable opportunity of hearing.

(d) Pursuant to the above remand order, the 1st respondent, who had

already passed an assessment order for the Assessment Year 2014-15

CST vide A.O.No.153477, dated 20.03.2019, once again passed

consequential order vide A.O.No.ZH371020OD25292, dated

05.10.2020 for the same assessment year, wherein he imposed tax on

the said inter-state consignment sales under the CST Act on the

ground of non-filing of 'F' forms.

(e) It is further submitted that the petitioner by making strenuous

efforts could trace out whereabouts of the consignment agent,

M/s.Ramkishor & Sons, Cochin and at last, obtained 'F' forms from

him vide his letter dated 04.01.2021. Immediately, the petitioner filed

those 'F' forms furnished by his consignment agent, vide its letter

dated 05.01.2021 duly explaining the reasons for the delay and with a

request to condone the same in terms of Rule 12(7) of the Central

Sales Tax (Registration and Turnover) Rules, 1956 and also placing

the relevant judgments. However, the 1st respondent declined to

consider the request of the petitioner on the ground that the 'F' forms

were filed after five years with much delay. Aggrieved, the present

writ petition is filed.

3. Heard learned counsel for petitioner, Sri G.Narendra Chetty and

learned Government Pleader for Commercial Tax representing on

behalf of the respondents.

4. The main plank of argument of learned counsel for petitioner is

that though the petitioner has cogently explained the reasons for delay

in filing the 'F' forms as he could not trace out his consignment agent

who left for abroad and came to India only recently and issued 'F'

forms through letter dated 04.01.2021, he would lament, the

1st respondent had unfortunately not given opportunity to the

petitioner to explain the reasons for the delay and passed the

impugned order. He would further submit that he has a strong case in

terms of Rule 12(7) of CST (R&T) Rules, 1956 and also in view of

the various judicial pronouncements. He, thus, prayed to set aside the

impugned order and direct the 1st respondent to afford an opportunity

to the petitioner to explain the reasons for delay in filing 'F' forms

and pass an appropriate order.

5. Learned Government Pleader opposed the writ petition stating

that the order impugned was perfectly valid because the petitioner has

filed 'F' forms after long delay of five years and the reason shown by

him is not a valid one.

6. As per the Rule 12(7) of the Central Sales Tax (Registration

and Turnover) Rules, 1957, the prescribed authority if satisfied that

the person concerned was prevented by sufficient cause from

furnishing such declaration or certificate within the aforesaid time,

that authority may allow such declaration furnished within such

further time as that authority may permit.

7. Thus, the above proviso pellucidly proclaims the discretion of

the authority concerned to consider the explanation offered by an

assessee in filing Form 'C' or Form 'F' in time and to pass an

appropriate order. In the instant case, the grievance of the petitioner is

that he was not afforded an opportunity to submit his case and the

1st respondent passed the order without affording an opportunity and

thus, principles of natural justice was violated.

8. Considering the said representation, this Court is of the view

that an opportunity should be accorded to the petitioner. Accordingly,

this writ petition is allowed and the impugned Endorsement in TIN

No.37494862982, dated 08.01.2021, passed by the 1st respondent is

set aside with a direction to the 1st respondent to consider the

representation dated 05.01.2021 of the petitioner and also the judicial

decisions said to be cited by the petitioner along with the

representation and if necessary, afford a personal hearing to the

petitioner and pass an appropriate order in accordance with the

governing law and rules expeditiously, but not later than four weeks

from the date of receipt of a copy of this order. Till such exercise is

completed, no further coercive steps shall be initiated against the

petitioner pursuant to the order in TIN.No.37494862982, dated

05.10.2020.

As a sequel, miscellaneous applications pending for

consideration, if any, shall stand closed. No costs.

_________________________ U.DURGA PRASAD RAO, J

_______________ J.UMA DEVI, J

21.01.2021

Note: issue C.C. by tomorrow.

B/o.SS