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2017 DIGILAW 422 (GAU)

Ethelwold Estate (Pvt. ) Limited v. State of Assam

2017-04-04

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. This petition under Article 226 of the Constitution is directed against the judgment dated 2.2.2015 passed by the Assam Board of Revenue, Guwahati, whereby it has affirmed the order as passed by the Assistant Commissioner of Taxes, Dibrugarh. 2. The petitioner is a Tea Company. It produces black tea and sells tea waste in the State of Assam as well as all over India. It also transfers stock of tea in course of Inter-State Trade and claims exemption from payment of taxes on the strength of declaration Form-F after duly receiving the same from its branch office outside the State as provided under Section 6-A of the Central Sales Tax Act, 1956. 3. The Assistant Commissioner of Taxes, Dibrugarh (Respondent No.3) vide communication dated 13.7.2011 informed the petitioner about the allegation having been raised by the Audit regarding six declaration Forms-F because they contained transactions of 2/3 Calendar months during the financial year, 2005-06. It was also stated therein that there was non-levy of taxes of Rs.23.39 lacs including interest under the Central Sales Tax Act. The petitioner, in reply, explained that Form-F was issued by the State of West Bengal only after arrival of goods at the transferee destination and that goods were only a stock transfer from its one office in the State of Assam to another office in the State of West Bengal. But Respondent No.3 did not agree with the petitioner and issued a notice of demand dated 17.11.2011 for Rs.16,17,459/-.Aggrieved, the petitioner preferred an appeal before the Deputy Commissioner of Taxes (Appeal) (Respondent No.4), but it was not entertained as not maintainable. The petitioner then went up in appeal before the Assam Board of Revenue, Guwahati and even deposited 20% amount of the demand. The Board of Revenue however did not find merit in the appeal and dismissed it by the impugned order. It is in this background, the petitioner has filed the present petition. 4. After hearing the learned counsel for the petitioner and the learned Senior Additional Advocate General, we are of the considered view that the petition deserves to be allowed. The record reveals that goods were admittedly not sold and the petitioner had only transferred the stock from its office in the State of Assam to another office in the State of West Bengal. The record reveals that goods were admittedly not sold and the petitioner had only transferred the stock from its office in the State of Assam to another office in the State of West Bengal. It is true that a single declaration may cover transfer of goods by a dealer to another place of its business or to its agent or principal, as the case may be, effected during a period of one calendar month. And it is generally seen that goods dispatched by the sender are received by his agent or principal, as the case may be, in the calendar month in most cases. But there are also instances where dispatches of goods are made towards the end of a particular calendar month and the goods reach the destination in the following month. Therefore, to over-come such technical situation, Government of Assam, office of the Commissioner of Taxes, has issued Circular No.1 of 2008 dated 8.1.2008 mandating that as there is no scope for loss of revenue, ‘F’ Forms covering such transactions should not be rejected on this technical ground. This aspect of the matter has apparently not been considered either by Respondent No.3 or by Respondent No.4. Also there has not been a revenue loss of even a single penny in the stock transfer of petitioner. Therefore, in the fact situation of the case, the petitioner cannot be fastened with a tax liability on such technical ground, which is purely procedural and not intentional. We accordingly quash assessment order dated 17.11.2011 of the Assistant Commissioner of Taxes, Dibrugarh as well as the impugned judgment dated 2.2.2015 of the Assam Board of Revenue and direct that the amount of 20% of the demand deposited by the petitioner be immediately refunded to it. The writ petition is allowed.