Ganga Automobiles (P) Ltd. And ... vs Sales Tax Officer And Others
1988 Latest Caselaw 318 Del

JUDGMENT

S.B. Wad, J.

1. These writ petitions raise common question of law and facts and hence are being disposed of by single judgment. Petitioners, M/s. Ganga Automobiles (P.) Ltd. (for short "Ganga") and M/s. Competent Motors (for short "Competent") are the selling agents of M/s. Maruti Udyog Limited. Through these writ petitions they have challenged the assessment orders for sales tax passed for the year 1983-84 under the Delhi Sales Tax Act, 1975. Assessment orders were passed by the Assistant Sales Tax Officer, Shri J. N. Gupta, on 27th April, 1985, 26th June, 1985 and 14th November, 1985 respectively. The sales tax levy was at 10 per cent of the value of the vehicle sold to the customer. Roughly the sales tax levied was around Rs. 5,000 per vehicle while the petitioners-dealers were entitled to commission of Rs. 2,000 per vehicle.

2. Under suspicion that the petitioners and M/s. Maruti Udyog Limited had conspired to evade the Delhi sales tax, the Sales Tax Department of Delhi Administration carried out an administrative enquiry though Shri J. N. Gupta, Assistant Sales Tax Officer. He made some enquiries from the petitioners and looked up the documents incorporating the main agreement between the petitioners and Maruti Udyog Limited with regard to agency. The said Assistant Sales Tax Officer had not called upon Maruti Udyog Limited to produce any documents nor made any enquiry regarding the actual transaction of sale of the Maruti car made during the year 1983-84. The learned Assistant Sales Tax Officer then came to the conclusion that there was in fact such evasion. He, on the basis of the principal agreement between the petitioners and the Maruti Udyog Limited, came to the conclusion that the sales were actually made by the petitioners in Delhi and were governed by section 4 of the Delhi Sales Tax Act, 1975. The said officer Shri J. N. Gupta then himself sat as quasi-judicial authority to determine the sales tax liabilities and confirmed the said administrative findings through a quasi-judicial order, which is challenged in these petitions.

3. At the time of hearing, the learned Solicitor-General and Shri A. K. Ganguli, Senior Advocate, who appeared for the respondent-department, tried to justify the order on merits but had to concede that before passing the impugned order the Assistant Sales Tax Officer had not looked into each of the sale transaction of the Maruti car for determining the situs of the sale and the parties to the sale. In Tata Engineering and Locomotive Co. Ltd. v. Assistant Commissioner of Commercial Taxes , the Supreme Court has explained the law in this regard and remanded the matter for fresh assessment by the Assistant Commissioner. The Supreme Court held : "Another serious infirmity in the order of the Assistant Commissioner was (a matter which even the Advocate-General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a convenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature and the appellant's representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigible to tax under the provisions of the Act."

4. Thus, in view of the decision of the Supreme Court, the impugned orders are required to be quashed and the matters are required to be heard afresh by the sales tax authority. Naturally, the sales tax authority will have to call upon the petitioners and also Maruti Udyog Limited to produce relevant documents regarding each sale transaction during the year 1983-84 and pass afresh sales tax orders thereon. However, the learned Assistant Sales Tax Officer had committed some other errors which are required to be corrected and the proper direction is given so that the fresh exercise would not be rendered futile resulting into multiplicity of proceedings.

5. Mr. Gupta, Assistant Sales Tax Officer, has repeatedly assumed in the impugned order that there was a deliberate attempt of the avoidance of the payment of tax by resorting to dubious methods under the guise of tax plan. He has also referred to Supreme Court's decision disapproving the practice. It is too much to accept or imagine that a company like M/s. Maruti Udyog Limited, which is closely associated with the Central Government, and has been treated as an instrumentality of the State itself by the Supreme Court, would be a party to any dubious method of tax evasion. Apart from this, there is no evidence cited by the learned Assistant Sales Tax Officer in support of his conclusion. What he examined was only the contract between the petitioners and M/s. Maruti Udyog Limited under which normally the vehicle is sold by the selling agent to the customer at Delhi. On examining some documents of the petitioners, the learned Assistant Sales Tax Officer found that there was large scale deviations from the terms of the contract. Since the sales tax authority had not made any enquiry from Maruti Udyog Limited in regard to the deviations, the sales tax authority rushed to the conclusion that the sales were being shown to have been made at Gurgaon (Haryana) for evading Delhi sales tax liabilities. The petitioners to these petitions have joined Maruti Udyog Limited as party-respondent. They have filed a counter-affidavit explaining the peculiar situation created by unprecedented rush for purchase of Maruti cars in the first year of its sale and how the company itself decided to resort to direct sale to the customers at Gurgaon in order to ensure fair play in the allotment and for avoiding of malpractices. It has further been asserted by the petitioners, and the fact is not denied by the respondent-department that for the subsequent year, viz., 1984-85, sales tax was in fact paid by the petitioners as they have made the sales of the vehicles in Delhi. The Assistant Sales Tax Officer did not also appreciate that clause 10 of the agreement empowered Maruti Udyog Limited to have a direct sale to the customers. The clause reads :

"Notwithstanding any other provisions of this agreement the company reserves the right to sell products in the territory by direct sale. In any such case there shall be no obligation on the company to pass any discount or commission to the dealer."

6. Thus, there was no evidence on record whatsoever, to infer that a dubious attempt was made by the petitioners and Maruti Udyog Limited to avoid payment of sales tax to Delhi authority. The respondent-authority was further wrong in holding that it was a fit case for invoking the proceedings under section 56 of the Delhi Sales Tax Act, 1975 against the petitioners.

7. From the averments made in the petitioners and the counter-affidavit of the Maruti Udyog Limited some salient facts regarding the transactions in question emerge.

8. After the public announcement by Maruti Udyog Limited, Maruti cars were booked during April, 1983 to June, 1983 with Maruti Udyog Limited. Initially booking was made by the customers direct with Maruti Udyog Limited on payment of Rs. 10,000 per vehicle by a demand draft payable to Maruti Udyog Limited at Gurgaon. At the time of the said direct booking neither Ganga Motors nor Competent Motors were appointed even as dealers. They were appointed dealers subsequently on 20th December, 1983 and 2nd November, 1983 respectively. The booking was so heavy and as Maruti Udyog Limited has a duty to protect the customers from any possible harassment or manipulation or exploitation, all applications for allotments were fed into computer. The draw of lot was made city-wise and not on all India basis. Although, the sales were made direct to the buyers at Gurgaon and some customers did collect the vehicles at Gurgaon, it was found that it would be very difficult for all the customers to come to Gurgaon for the delivery. Hence, although a direct sale was resorted to under clause 10 of the agreement, the services of the dealer were used for carrying the vehicles from Gurgaon to Delhi for delivery to the customers and for service, maintenance and repairs at Delhi. The check/drafts for the balance of the amount were drawn by the customers in the name of the Maruti Udyog Limited on specified banks and were payable at Gurgaon. But even in assigning the dealer for rendering the services, more objective method was followed; all odd numbers were assigned to one dealer and all even numbers were assigned to another dealer. The petitioners have placed on record three documents showing the separate contract between the customers and the dealer. The first one produced as annexure-F whereby Ganga Automobiles had informed the customers for a bank draft in their names at New Delhi to cover expenses towards insurance, transportation, registration, etc. The letter further states that the balance payment along with the documents, such as acknowledgement slip of the initial payment of Rs. 10,000 allotment cards sent by Maruti Udyog Limited to the customers and proof of the Delhi residence of the customers should be sent to the Ganga Automobiles at the earliest "to enable us to effect the delivery of your vehicle on your turn". The second document gives the details of transit insurance from Gurgaon to Delhi, collection charges, transportation and temporary registration including octroi. The letter informs "the title of vehicle passes on to you as soon as the vehicle crosses the excise gate at the works of Maruti Udyog Limited, Gurgaon, and henceforth all risks are on your account". The third is an authorisation letter by the customer to Ganga Automobiles making certain payments by draft for being forwarded to Maruti Udyog Limited and additional payment to cover the cost of transportation, octroi, freight, insurance, etc. The letter also authorises Ganga Automobiles to take delivery of the vehicle from Maruti Udyog Limited at Gurgaon on behalf of the customer. It also produced gate pass at Gurgaon in the name of the customer also produced gate pass at Gurgaon in the name of the customer issued by Maruti Udyog Limited. Similar documents are produced by M/s. Competent Motors also.

9. The facts stated above prima facie establish that the payments were made at Gurgaon and the delivery of the vehicle was given by Maruti Udyog Limited to the customer (of course through the petitioners) at Gurgaon. No part of the sale was made by the petitioners to the customers at Delhi or at any other place at all. The situs of the sale was clearly Gurgaon and not Delhi.

10. The respondent-tax authority must, therefore, re-examine the documents in regard to each transaction separately and not go by any generality. On such re-examination if they find that the facts in regard to the situs of the sale, as stated above, obtain in a given case, such sale would not be exigible at Delhi under the Delhi Sales Tax Act, 1975. But if the documents on re-examination show a contrary position in a given case such transaction would attract the provisions of the Delhi Sales Tax Act, 1975.

11. The impugned assessment order in each of the three petitions and orders directing the penalty proceedings under section 56 are null and void and are quashed. The respondent-tax authority should rehear the entire matter by giving opportunity to the petitioners to produce such evidence as they deem fit in regard to each transaction of sale of the vehicle. The authority shall then independently apply its mind to the material evidence in each transaction separately and pass the appropriate assessment order.

12. It was argued by the Solicitor-General on behalf of the respondents that the writ petitions were not maintainable since the alternative remedy is available to the petitioners under the statute, namely, Delhi Sales Tax Act. We do not think we can accept this preliminary objection after the writ petitions have been admitted more than three years back and pending disposal before this Court. So, also the impugned demand notice contained such legal infirmity apparent on the face, that the petitioners cannot be faulted for seeking extraordinary relief by way of writ from this Court. Another reason peculiar to this case which prompts us not to throw out the petitions on the ground of alternative remedy, is an admitted fact that in the instant case the Sales Tax Officer Shri J. N. Gupta conducted the administrative enquiry in the matter on superior orders and confirmed his findings sitting in another capacity as a quasi-judicial Tribunal. Thus to direct the petitioners to prefer the statutory appeal would really amount to an appeal from caesar to caesar. We, therefore, had not found any merit in the preliminary objection and had, therefore, rejected the same.

13. The petitions are partly allowed. The cases are remanded to the Assistant Sales Tax Officer for determination afresh in the light of the law and the observations stated above. There will be no order as to costs.

14. The security bond/bank guarantee furnished in each of the writ petitions under the orders of this Court shall stand discharged.

15. Writ petitions partly allowed.