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2014 DIGILAW 650 (GAU)

GUJARAT CO-OPERATIVE MILK v. STATE OF ASSAM

2014-06-20

A.M.SAPRE, UJJAL BHUYAN

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JUDGMENT (A.M.Sapre, CJ) This is a revision filed by the Dealer/Assessee under Section 81(1) of the Assam Value Added Tax Act, 2003 read with Section 9(2) of the Central Sales Tax Act, 1956 against the order dated 4.10.2013 passed by Assam Board of Revenue at Guwahati (for short called The Board) in Case No.40 STA of 2012. By impugned order, the Board dismissed the appeal filed by the revision petitioner under Section 4 (2) of the Act and in consequence upheld the order dated 15.9.2011 passed by the Addl. Commissioner of Taxes, Assam in respect of assessment year – 2008-2009 made by the assessing authority by assessment order dated 13.7.2010. Looking to the short point involved in the revision, we heard the matter finally after giving notice of the revision to the State Counsel at the time of admission of the revision and admitting the revision for final hearing, heard the matter finally after affording an opportunity to parties of making their submissions through their lawyers and upon perusal of the record of the case, formed an opinion to allow the revision and while setting aside the order of the Tribunal so also the revisionary order dated 15.9.2011 passed by the Deputy Commissioner of Taxes, and also that of the assessing authority dated 13.7.2010 remand the case to the assessing authority to make fresh assessment in the light of our observations made herein below. The petitioner is a registered dealer under the provisions of Assam General Sales Tax Act (for short called ‘the Act’) read with the provisions of Assam Value Added Tax Act. It is engaged in the business of manufacture and sale of various milk products under the brand name “Amul“. The petitioner was assessed to payment of State and Central Sales Tax for the assessment year 2008-2009 by the assessing authority by its order dt. 13.7.2010. During the assessment proceedings, the petitioner had claimed the benefit of certain interstate transactions by taking recourse to “C“ forms under the Central Sales Tax Act but since they failed to produce the said “C“ forms before the assessing authority at the time of assessment in support of their claim and hence they could not claim any benefit on such transactions. The petitioner filed revision against the assessment order before the Additional Commissioner of Taxes. The petitioner filed revision against the assessment order before the Additional Commissioner of Taxes. In this revision, the petitioner filed the relevant “C” form, which they were not able to file before the assessing authority. It is clear from the order dated 15.9.2011, which records this fact in the order: “(c) The relevant Forms have since been collected, and hence assessing officer should be directed to accept the same.” The revisionary authority however by order dt. 15.9.2011 declined to take the forms though filed before him for consideration saying in substance that now it is too late to file such forms at the revision stage when several opportunities were granted to the petitioner to file. This is what the revisionary authority held on this issue in the concluding para : “In the present case, the petitioner was allowed time as per their requests on 9 occasions i.e. 8.10.2009 to 9.6.2010. The assessment year in issue was 2008-2009 and hence the petitioner should have submitted all the Forms before 30.6.2009. But the dealer could not do so even upto 9.6.2010 though time as prayed for was granted to him. Under the circumstances, I think it is a fit case to take a “stiffer standard” as observed by the Hon’ble Supreme Court (supra). Accordingly, as the petitioner could not submit the Forms within the prescribed time, and as he could not do so even after availing time as per his prayer, I do not consider it proper to accept the Forms at the revisional stage. There is another reason to do so as there must be an end to any legal proceeding. The proceeding cannot be allowed to prolongate indefinitely as that would defeat the purpose of law in allowing reasonable opportunity in cases of extreme hardship. In the present cases more than sufficient reasonable opportunity was allowed. Accordingly, the revision petition is dismissed. Inform all concerned.” The revision was accordingly dismissed and in consequence the assessment order dated 13.7.2010 was upheld. The petitioner felt aggrieved at the dismissal of the revision pursued the matter further in appeal before the Tribunal. The Tribunal by impugned order dismissed the appeal and in consequence upheld the order of the Additional Commissioner (Revisionary authority). It is against this order; the assessee/dealer has felt aggrieved and filed this revision petitioner. Heard Mr. GK Joshi, learned counsel for the petitioners and Mr. The Tribunal by impugned order dismissed the appeal and in consequence upheld the order of the Additional Commissioner (Revisionary authority). It is against this order; the assessee/dealer has felt aggrieved and filed this revision petitioner. Heard Mr. GK Joshi, learned counsel for the petitioners and Mr. R Dubey, learned standing counsel, Finance for the respondents. In our considered opinion, the approach of the revisionary authority and that of the appellate authority in not taking the relevant forms filed by the petitioner on record only because they were filed slightly late at the revisionary stage cannot be upheld and deserves to be set aside. In our view, the authority should have seen that law permits filing of the document in the form of additional evidence even at the first appellate stage or/and second appellate Stage. The principle underlined in Order 41 Rule 27 of C.P. Code though applicable to the civil proceedings is equally a guide to decide the revision/ appeal under the Act. Indeed, Section 34(2) of Assam General Sales Tax Act empowers the appellate court to allow the appellant to file additional evidence in appeal. Section 34(2), which is akin to Order 41 Rule 27, reads as under: “34 (2) - The Appellate Authority, or as the case may be, the Tribunal may, at the hearing of the appeal, after giving the authority which passed the order under appeal an opportunity of being heard, allow the appellant to go into any ground of appeal not specified in the grounds of appeal or to produce any evidence whether oral or documentary, not produced at any earlier stage of the proceeding insofar as such ground or evidence does not relate to any facts not furnished to or to any claim not made before the lower authority if it is satisfied that the omission of the ground in the memorandum of appeal or the failure to produce the evidence at the earlier stage was not willful or unreasonable.” This provision enables the party to file additional evidence-oral or documentary and which is material for determination of issue arising in the case in appeal provided a ground is made out as to why it could not be filed at earlier stage and why it was filed at the appellate court. Indeed the approach of the courts/authorities in granting indulgence to file additional documents at an appellate stage has been liberal because in order to do substantial justice, the trial should always be fair and reasonable. In our view, such power can also be exercised by the revisionary authority while hearing revision arising out of assessment order, it being a higher authority in the hierarchy under the Act to examine the legality and correctness of assessment order of assessing authority. At this juncture, we also remind ourselves of the observations made by the Supreme Court in the leading case reported in AIR 1955 SC 425 Sangram Singh vs Election Tribunal. Justice Vivian Bose, speaking for the Bench, in his distinctive style of writing, held as under: “A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of nature justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” Applying the aforesaid principle in letter and spirit to the facts of the case and further keeping in view the provisions of Order 41 Rule 27 and Section 34(2) of Assam General Sales Tax Act, we are of the considered opinion that delay on the part of the petitioner in filing documents (“C” forms) at the revisionary stage should have been condoned and the documents (“C” forms) should have been taken on record for determining the tax liability of the petitioner. Prima facie documents filed appeared relevant because they were ‘C’ forms. Prima facie documents filed appeared relevant because they were ‘C’ forms. It was not the case of the State (Revenue) that the documents sought to be filed were not relevant or they were bogus. Had it been so, then situation would have been different. We have examined the cause stated by the petitioner and are satisfied with the sufficiency of the cause. In our opinion, it deserves to be accepted for taking the documents on record for making assessment for the assessment year in question. In the light of foregoing discussion, the revision petition succeeds and is allowed. The impugned orders dated 4.10.2013 (Annexure–IX), 15.9.2011 (Annexure-VI) and 13.07.2010 (Annexure-I) are set aside. As a consequence, the case is remanded to the assessing authority to make fresh assessment of the petitioner after taking into consideration all the documents including those filed in revision before the Additional Commissioner which we have directed them to be taken on record and then pass fresh assessment order after affording an opportunity to the petitioner in the assessment proceedings. Let this be done within 6 months as an outer limit. We however make it clear that we have not expressed any opinion on the merits of the assessment of the petitioner’s case except to take the documents on record for making fresh assessment and nor we have examined the genuineness of the documents and hence the assessing officer would verify the relevancy and genuineness of the document alongwith all other documents on record and then will pass reasoned assessment order in accordance with law. No cost.