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2009 DIGILAW 51 (CAL)

Nabamundran Private Limited v. Commercial Tax Officer, Shyambazar Charge

2009-02-02

SOUMITRA PAL

body2009
JUDGMENT Soumitra Pal, J. 1. M/s. Nabamundran Private Limited, a private limited company engaged in the business of printing and publishing and registered under the West Bengal Sales Tax Act, 1994 and Central Sales Tax Act, 1956 is the petitioner No.1 and the petitioner No.2 is its Managing Director. 2. It appears that on 17th June, 2005 the Commercial Tax Officer, Shyambazar Charge, Kolkata, the respondent No.1, passed the assessment order for the period relating to 4th quarter ending with 31st March, 2003 disallowing a claim of Rs. 14,29,556.50/- along with other disallowances under the Central Sales Tax Act, 1956 on the ground of non-production of valid documents. Being aggrieved, the petitioner preferred an appeal before, the Assistant Commissioner of Commercial Taxes, Kolkata, Central Circle, the respondent No.2. In appeal the order passed by the assessing authority was confirmed. Still aggrieved the petitioners filed a revisional application before the Additional Commissioner of Commercial Taxes, West Bengal, Kolkata, the respondent No.3, who too confirmed the disallowance. The grievance is though it appears from the assessment order passed by the respondent No.1 that the books of accounts were produced and the claim was disallowed on the ground of absence of valid documents such as Form-H and though it is evident from the order passed by the respondent No.2 that some Form-H certificates were furnished, the revisional authority, failed to consider the same. It is contended that as none of the orders dated 17th June, 2005, 24th November, 2006 and 4th July, 2007 passed by the respondent Nos. 1, 2 and 3 respectively did not specify the documents which the petitioner had allegedly failed to produce, said orders cannot be sustained. 3. Learned Advocate appearing on behalf of the respondents submits that as it is evident from each of the orders passed by the respondents that the petitioners failed to produce the valid documents, the orders passed are just and proper. 4. In order to appreciate the issue it is necessary to refer to the orders passed by each of the respondents. 5. 4. In order to appreciate the issue it is necessary to refer to the orders passed by each of the respondents. 5. It appears from the order passed by the respondent No.1 being annexure - P/1 to the writ petition, that the "claim" was "disallowed in absence of valid documents, such as Form H etc." Evidently, though non-production of Form H has been mentioned, the said respondent did not specify the valid documents necessary for assessment which is evident from the use of the word 'etc'. Instead of specifying the documents required, the respondent No.1 had used the word 'etc', that is, 'etcetera' meaning 'and so on' (Concise Oxford English Dictionary) which is vague”. 6. The 'order dated 24th November, 2006 passed by the respondent No.2 in appeal records that "He now, produces some certificates in Form H but fails to produce books of a/cs and other relevant documents". The appellate authority does not specify the 'other relevant documents' required for the purpose of assessment. 7. The order dated 4th July, 2007 passed by the respondent No.3 is on similar lines. The relevant portion of the said order is as under: "As regards CST Act 56 his claim of Rs. 14,29,556.50 under section 3 is disallowed as he fails to produce relevant documents in support of his contention. Hence both the order under WBST Act, 1994 and CST Act, 1956 stands confirmed." 8. I find that the respondent No.3 too has failed to specify the relevant documents. It is to be noted that an assessment order has financial implications. Keeping that in mind, in my view the assessee ought to have been apprised clearly about the documents required for assessment which assumes significance in view of Rule 12(10)(a) of the Central Sales Tax (Registration and Turnover) Rules, 1957, which is extracted hereunder :- "(a) A dealer may in support of his claim that he is not liable to pay tax under this Act in respect of any sale of goods on the ground that the sale of such goods is a sale in the course of export of those goods out of the territory of India within the meaning of sub-section (3) of section 5, furnish to the prescribed authority a certificate in Form 'II' duly filled and signed by the exporter along with evidence of export of such goods." 9. It appears from a reading of the rule that an assessee has to produce evidence in support of the goods exported. Hence, if the authorities are of the opinion that the assessee has failed to produce documents in support of the export, the authorities should have intimated the assessee in no uncertain terms the specific documents required for assessment. However, in the instant case, the opposite has happened. All along orders have been passed perfunctorily. The malaise, as evident from the orders impugned, has continued till the revisional authority. Therefore, as I find that the respondents including the revisional authority failed to specify the relevant documents though from the order of the respondent No.2 it appears that the petitioners had produced some Form-H certificates, the orders impugned cannot be sustained and are, therefore, set aside and quashed. However, the assessing authority is at liberty to make fresh assessment after giving an opportunity of hearing to the petitioner. At the time of hearing the assessing officer shall be at liberty to seek for production of documents and certificates which shall be specified and the petitioner shall produce the same. 10. I make it clear that I have not gone into the merits of the case and all points are left open to be dealt with by the authority concerned. 11. The writ petition is, thus, allowed. 12. No order as to costs. 13. Urgent xerox certified copy of this order, if applied for, be given to the appearing parties on priority basis. Writ petition allowed.