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2002 DIGILAW 546 (PAT)

Shakti Steel Pipes And Another v. State Of Bihar

2002-04-26

NAGENDRA RAI, R.S.GARG

body2002
Judgment 1. The petitioner-company has filed the present writ application challenging the orders dated April 16, 2002 and April 17, 2002 passed by the Assistant Commissioner of Commercial Taxes, Hajipur Anchal, Hajipur, contained in annexures 5 and 5A to the writ application stopping the issuance of form XXVIIIB under the provisions of the Bihar Sales Tax Act read with the Bihar Sales Tax Rules. 2. The petitioner-company is engaged in manufacturing galvanised iron pipes by galvanising black pipes and sells the same with sockets and without sockets. By the impugned orders, the authorities have stopped the issuance of form XXVIIIB of the Act on the ground that the petitioner-company has not paid four per cent sales tax on the socket which he purchases from outside and thereafter fitted with the G.I. pipes sold in the market. 3. Learned counsel appearing for the petitioner submitted that only provision under which issuance of form XXVIIIB can be stopped is under Rule 45 of the Rules. The relevant provision for the purpose of the present case is Rule 45(b) of the Rules where the form XXVIIIB can be withheld in three eventualities, namely, (i) when the applicant at the time of making application for relevant form defaulted in furnishing any return or revised return, together with the receipted challan showing payment of the tax due from him according to such return or revised return, (ii) or has failed to make payment of any amount of tax by the date specified in the notice under Sub-sec. (2) of sec. 25 and (iii) or in the like manner has failed to make payment of tax by the date extended under first proviso of Sub-sec. (2) of sec. 25 or has defaulted in payment of instalment. 4. None of three eventualities has happened in this case as the petitioner has been paying tax according to return submitted by it. No determination has been made by any of the authorities showing the amount of tax due which has not been paid by the petitioner and as such the authorities cannot withhold issuance of form XXVIIIB. 5. The learned counsel appearing for the State on the other hand submitted that very object of the aforesaid provision is to prevent evasion of tax. 5. The learned counsel appearing for the State on the other hand submitted that very object of the aforesaid provision is to prevent evasion of tax. As the petitioner is evading the tax in the sense that the petitioner is not paying four per cent sales tax on the sockets purchased by it, the respondents-authority rightly refused the form XXVIIIB till the payment of tax. 6. After hearing learned counsel for the parties we find force in the submission advanced on behalf of the petitioner. Admittedly, no determination has been made by the sales tax authorities till today that the petitioner is liable to pay 4 per cent sales tax on the sockets purchased and sold by it. Unless that determination is made and the demand is made which is not paid by the petitioner, there is no question of breach of the provisions of the Rule 45(b) of the Rules. It is not the case of the department that the petitioner has not filed the return or the amount has not been paid on the basis of said return. Thus, the respondent-authority was not justified in withholding the form XXVIIIB. 7. Accordingly, the impugned orders as contained in annexures 5 and 5A to the writ application are quashed and the authorities concerned are directed to issue form XXVIIIB at once to the petitioner. However, we would like to make it clear that we are not expressing any opinion as to whether the petitioner is liable to pay sales tax on the purchase and sale of the sockets or not, it is for the sales tax authorities to decide it in accordance with the provisions of the Act and Rules and on such determination being made take further steps in accordance with law. With the aforesaid observations/directions, the writ application stands disposed of.