Jharkhand High Court
Steel Authority Of India Limited ( ... vs The State Of Jharkhand Through The ... on 23 January, 2023
Author: Aparesh Kumar Singh
Bench: Deepak Roshan, Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 5636 of 2022
Steel Authority of India Limited ( Bokaro Steel Plant) having
Its office at Bokaro Steel City, Bokaro, Jharkhand through its
Authorized signatory-cum-Deputy General Manager (F&A-S&IT),
Rajeev Gupta R/o of Bokaro Steel City, Bokaro, Jharkhand
--- --- Petitioner
Versus
1.The State of Jharkhand through the Commissioner of State
Taxes, Ranchi, Jharkhand
2.Joint Commissioner of State Taxes (Appeals), Dhanbad Division, Dhanbad
3.Deputy Commissioner of State Taxes, Bokaro Circle, Bokaro
--- --- Respondents
.......
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : M/s Sumeet Gadodia, Ranjeet Kushwaha & Aakansha Mittal, Advocates For the Respondents : Mr. P.A.S Pati, Advocate 05/23.01.2023 Heard learned counsel for the parties.
2. By the impugned judgment dated 28.04.2022 passed in Revision Case No. DN 3 of 2020, the learned Commercial Taxes Tribunal, Jharkhand has allowed correction of 11 Form-C out of 13 and rejected the prayer in relation to the remaining two Form-C bearing no. 19091213566883 and 241020338241210, as according to Tribunal, these two C-Forms contain a different sellers name i.e. SAIL branch sales office Bokaro and the TIN No. of a different entity. The present controversy has arisen on the basis of an audit objection after completion of the assessment proceedings in relation to VAT and CST assessment for the period 2011-12 wherein at paragraph 24 the office of the Accountant General had pointed out the following objections:
"Scrutiny of assessment records of the dealer revealed that the dealer during 2011-12 had submitted 13 number of declaration in form 'C' valuing Rs. 289,617,675.07/- which either the name of the selling dealer is blank or issued to the name of the other state branch of the dealer company hence those forms were liable to be disallowed. Non-verification of the form by the assessing authority resulted in underassessment of tax of Rs.57,92,353.50/-. Details in Annexure-B. After this was pointed out the DCCT stated that the observation is not tenable and may kindly be reviewed and dropped, but the DCCT has not furnished the reasons for the objection being not tenable. Matter may be reviewed again under intimation to audit."
3. Although in the audit objection 13 number of declaration Form-C for an amount of Rs. 28,96,17,675.07/- was alleged to be defective but in the chart appended to the audit objection reference of only 11 number of 2 forms was given. Pursuant to the re-assessment, petitioner filed its reply containing that these discrepancies were minor in nature and rectifiable. Petitioner requested to drop the proceeding initiated under Section 42(3) of the JVAT Act. However, by the re-assessment order dated 17.02.2017 differential rate of tax on alleged 13 numbers of defective Form-C amount to Rs.57,92,353.50 was imposed upon the petitioner Company and a demand notice was also issued. Petitioner went in appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad in Appeal Case No. BK CST-02/2017-18. The appellate authority was pleased to remand the matter to the assessing officer with respect to 8 numbers of Form-C for their rectification. For the remaining 3 numbers of Form-C the prayer was rejected. Thereafter, petitioner approached the learned Commercial Taxes Tribunal, Jharkhand in revision petition no. DN 3 of 2020. Learned Tribunal after considering the details in respect of the remaining three Form-C, remanded the matter to the Assessing Officer in respect of one defective form whereas rejected the explanation and prayer made by the petitioner in respect of the remaining two Form-C, taken note in the foregoing paragraph. The list of the defective Form-C containing the name of the purchasing dealer, Tin number, Form No., amount and observations made by the audit team are quoted in a chart in the appellate order, which are also extracted hereunder:
Sl Name of the TIN Form No. Amount Observation No. purchasing Dealer 1 PNP Casting's (p) Ltd. 09302103480 0585960 16,93,000.00 The name of Agra UP the selling dealer and TIN in Form C is not mentioned
2. Magnum Steel Ltd, 233335501721 2480181 16,75,016.00 The name of Banmore the selling dealer and TIN in Form C is not mentioned
3. B D Gupta & Bros, 04640007881 1247054 51,94,888.00 The name of Phase-II Chhatisgarh, the selling UT Chhatisgarh dealer and TIN in Form C is not mentioned
4. B D Gupta & Bros, 04640007881 1247054 51,94,888.00 The name of Phase-II Chhatisgarh, the selling UT Chhatisgarh dealer and TIN in Form C is not mentioned
5. Data Brothers, 06941322421 6548284 5,03,30,306.10 One Seller Faridabad, Haryana name is mentioned as Bokaro steel plant. Seller's 3 TIN value of good not mentioned.
6. Devi Dayal Hri Kishan, 09143000008 0254769 1,76,98,488.00 Only seller Kanpur, UP name is mentioned as Bokaro steel plant. Seller's TIN not mentioned.
7. Shree Balaji 09837513726 423624 1,80,87,725.00 The name of Enterprises, Kanpur, the selling UP dealer and in Form C is not mentioned.
8. Jayesh Steel Pvt. Ltd. 24573400598 241109474 51,46,898.00 The seller 791107 name is mentioned as SAIL BOKARO State-
Chhattisgar
9. Vishal Precision steel 29980055636 3078138 2,76,65,234.00 The seller Tubes & stripes pvt. name is Ltd. mentioned as SAIL, Bokaro steel plant Lodi Road, Delhi
10. Tata Steel Processing & 19432057240 190912135 1,77,23,806.97 The seller Distribution Ltd. 66883 name is Kolkata mentioned as SAIL Branch Sales office Bokaro and TIN-
20671402315
11. Indian Oil Corporation 24573200438 241020338 12,41,80,697.00 The seller Ltd. Gujarat 241210 name is mentioned as Steel Authority of India Limited Delhi, TIN-
20572900273 Therefore, the controversy now remains in respect of correction of the remaining two Form-C.
4. Learned counsel for the petitioner has taken this Court to the relevant two Form-C at Annexure-8 (page no. 105) and Annexure-10 (page no. 107). It is pointed out from these two documents that the name of the seller is rightly been referred to by the purchasing dealer in the Form-C issued by the respective State of West Bengal and Gujarat as Steel Authority of India Limited but the TIN number is quoted wrongly. At page 105 (Annexure-8) the TIN number is of the Bokaro Sales Office whereas in page 107 (Annexure-10) the TIN number is of Ahmedabad though the name is of Steel Authority of India Ltd- Delhi. It is submitted that Form-C can be submitted at any stage during the assessment proceedings up to the revisional authority as the provision under rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 4 is directory in nature by virtue of the judgment rendered by the Apex Court in the case of State of H.P. & others Vrs. Gujarat Ambuja Cement Ltd. & another reported in (2005) 6 SCC 499 para 37 and also in the case of State of A.P. & others Vrs. M/s Hyderabad Asbestos Cement Production Ltd. & others reported in (1994) 5 SCC 100, para 13. It is submitted that the learned Tribunal made a distinction relating to remaining two Form-C compared to the other Form-C, which is not correct on facts, by recording that the one Form-C contains different sellers name i.e. SAIL Branch Office, Bokaro and the TIN number is different from that of the present petitioner; the second Form-C also contains sellers name as Steel Authority of India Ltd. Delhi with a different TIN number i.e., of Ahmedabad. It is submitted that the finding of the learned Tribunal that other Form-C bearing No. 3078138 did have a blank address is not correct as is evident from the chart extracted above from the appellate order and relating to the purchasing dealer Vishal Precision steel Tubes & stripes pvt. Ltd. It is submitted that petitioner would have to pay a differential rate of tax if Form-C are not allowed to be rectified, though the defect is on the part of the purchasing dealer. Therefore, grievances of the petitioner relating to these two Form-C may also be allowed to be rectified within a time frame.
5. Learned counsel for the respondent State has filed a counter affidavit and taken objection to the prayer. The observations made by the appellate authority and the learned Tribunal has been defended in the counter affidavit also stating that the learned Tribunal has found that in one Form-C TIN No. was blank and also the name of the selling dealer was appropriate but the address was wrong. Therefore it was allowed to be rectified but refused to do so as the other two Form-C contain different sellers name i.e. SAIL Branch officer, Bokaro and TIN number is also of different entity.
6. We have considered the submissions of learned counsel for the parties and taken note of the pleadings placed on record. We have also gone through the impugned judgment and the decisions cited by learned counsel for the petitioner.
7. As per the settled position in law under the provisions of Rule 12 (7) of Central Sales Tax (Registration and Turnover) Rules, 1957, the requirement of time as to the filing of Form-C has been held to be directory. The expression "first assessing authority" under sub-rule (7) of 5 Rule 12 does not mean that the appellate authority does not have the power to receive Form-C if the petitioner has shown sufficiency of cause. The decision of the Apex Court in the case of State of A.P. & others Vrs. M/s Hyderabad Asbestos Cement Production Ltd. & others (supra) in this regard at para 13 is extracted hereunder:
"Para 13 The aforesaid observations show that the mere use of the words " the first assessing authority" in sub-rule (7) of Rule 12 cannot and does not mean, in the context and scheme of the enactments concerned herein, that the appellate authorities do not have the power to receive Form-C in appeal. This power can of course be exercised only where sufficient cause is shown by the dealer for not filing them up to the time of assessment before the first assessing authority. If in a given case, a dealer had obtained further time from the first assessing authority and yet failed to produce them before him, it is obvious that the appellate authority would adopt a stiffer standard in judging the sufficient cause shown by the dealer for not producing them earlier. It is necessary to reiterate that receipt of those forms in appeal cannot be a matter of course; it should be allowed only where sufficient cause is established by the dealer for not producing them before the first assessing authority as contemplated by Rule 12(7). The requirement of the said sub- rule cannot be excluded from consideration by the appellate court, while judging the sufficiency of the cause shown. It must be remembered that that is the primary obligation of the dealer and his failure to abide by it must be properly explained. Insofar as the Sales Tax Appellate Tribunal under the Andhra Pradesh Act is concerned, it is governed by Regulation 11(1) referred to hereinabove which again is nothing but a reiteration of the very same power.
Similarly in the case of State of H.P. & others Vrs. Gujarat Ambuja Cement Ltd. & another (supra) it has been held at para 37 as hereunder:
"Para 37. It was urged on behalf of the appellant State that declaration forms under the Central Act were not filed within time and/or were defective. That does not in reality amount to non-compliance with a statutory provision. Respondent 1 Company was claiming exemption and, therefore, had not filed the declaration forms. Some of the forms which were filed were treated to be defective. Undisputedly, before the Revisional Authority a prayer was made for grant of opportunity to rectify the defects, if any. That was turned down. It is to be noted that under Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (in short "the Registration Rules") the declaration form can be filed at a subsequent point of time and not necessarily along with returns. On an application being made before the assessing officer the exemption can be granted. The object of the rule is to ensure that the assessee is not denied a benefit which is available to it under law on a technical plea. The assessing officer is empowered to grant time. That means that the provisions requiring filing of declaration forms along with the return is a directory provision and not a mandatory provision. In a given case even the declaration forms can be filed before the Appellate Authority as an appeal is continuation of the assessment proceedings. In a given case, if the Appellate 6 Authority is satisfied that the assessee was prevented by reasonable and sufficient cause which disenabled him to file the forms in time, it can be accepted. It can also be accepted as additional evidence in support of the claim for deduction. In the instant case, Res pondent 1 Company made a specific request before the Revisional Authority which was turned down. Therefore, the question of any non-compliance with the relevant statutes does not arise. It was noted by this Court in Sahney Steel and Press Works Ltd. v. CTO that even in a given case, an assessee can be given an opportunity to collect declaration forms and furnish them to the assessing authority if the challenge of the assessee to taxability of a particular transaction is turned down.
8. The defect as pointed out by the auditor are rectifiable in nature as the name of the seller has been spelled as Steel Authority of India Limited, though there is an error in the TIN number of the selling department, which is a mistake at the end of the purchaser as a result of which, petitioner would have to pay the differential rate of tax. In such circumstances, we do not find any reason for the Tribunal to have taken a different view in respect of these two Form-C. Accordingly, the matter is remanded to the assessing authority. The assessing authority will return the original Form-C within a period of 4 week from the date of receipt of copy of this order. Petitioner shall submit the rectified Form-C within a period of 12 weeks, thereafter for correction of relevant two Form-C bearing no. 19091213566883 and 241020338241210.
9. The writ petition is allowed.
(Aparesh Kumar Singh, A.C.J.) (Deepak Roshan, J.) A.Mohanty