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2020 DIGILAW 778 (TS)

Roxy Agencies v. Appellate Deputy Commissioner Ct

2020-11-12

CHALLA KODANDA RAM, M.S.RAMACHANDRA RAO

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JUDGMENT M.S.Ramachandra Rao, J. - Heard Sri Shaik Jeelani Basha, learned counsel for the petitioners and Sri M.Govind Reddy, learned Special Counsel for Commercial Taxes appearing for the respondents in both the cases. 2. Since same point arises in both these cases, they are being disposed of by this common order. 3. The petitioners in both these cases are assessees registered under the CST Act, 1956 before the 2nd respondent. They are both proprietary concerns with different names but have the same Proprietor. 4. The 2nd respondent had assessed (i) the petitioner in W.P.No.19317 of 2020 for the tax period 2015-16 under the CST Act, 1956 by passing an order on 17.03.2020 and (ii) the petitioner in W.P.No.19324 of 2020 for the tax period 2015-16 under the CST Act, 1956 by passing an order on 13.03.2020. 5. The petitioners had then preferred Appeal No. A/26/20-21 V and Appeal No. A/25/20-21 V before the 1st respondent. 6. By separate orders passed on 22.09.2020 in ADC Order No.1706 and on 23.09.2020 in ADC Order No.1708 respectively, both these Appeals were dismissed. 7. The orders passed by the 1st respondent are challenged in these two Writ Petitions on the short ground that after the appellate order was passed, in the residential house of the Proprietor of the respective petitioners, certain C-Forms had been located on 12.10.2020 which were earlier misplaced; and the details of the traced-out C-Forms are mentioned in para 6 of the affidavit filed in support of the respective Writ Petitions. 8. It is alleged that this fact was informed to the 2nd respondent on 14.10.2020 after the 2nd respondent had issued a notice dt.08.10.2020 asking the respective petitioners to pay Rs.7,82,636/- and Rs.4,10,854/- within 7 days. 9. A further contention is also raised that for the tax period April, 2015 to January, 2016, the assessment made by the 2nd respondent is barred by limitation prescribed under Sub-rule (5A) of Rule 14A of the CST (Telangana) Rules though this ground was not taken inadvertently before the Appellate Authority. 10. It is stated that though the impugned orders are appealable to Telangana VAT Tribunal, the said Tribunal is not functioning because of the vacancies of both Departmental Member and the Accountant Member, and so the petitioners have approached this Court under Art.226 of Constitution of India. 11. 10. It is stated that though the impugned orders are appealable to Telangana VAT Tribunal, the said Tribunal is not functioning because of the vacancies of both Departmental Member and the Accountant Member, and so the petitioners have approached this Court under Art.226 of Constitution of India. 11. It is prayed that the impugned orders be set aside and the matter be remanded back to the 2nd respondent to enable the petitioners to place the C-Forms which have now been located. 12. Reliance is placed by petitioners on the Judgment of this Court in Godrej Agrovet Ltd. Vs. The Commercial Tax Officer, Eluru, 2007 7 VST 730 (AP) and the order dt.31.12.2019 in W.P.No.21316 of 2019 and the order dt.20.12.2019 in W.P.No.20160 of 2019 passed by the High Court of Andhra Pradesh. 13. In Godrej Agrovet Ltd. ( 1 supra), a Division Bench of the Andhra Pradesh High Court considered the question whether the proviso to sub-rule (7) of Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 enables a dealer to file C-Forms after making of the assessment by the competent authority and answered the question in the affirmative in the following terms: "2. The short question that falls for our consideration in these writ petitions is as to whether the proviso to sub-rule (7) of Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 (for short 'the Rules') enables a dealer to file C forms after making of the assessment by the competent authority. The question is not res integra but squarely covered by an authoritative pronouncement of this Court in RAJESWARI STONE POLISHERS v. STATE OF A.P. wherein the Division Bench speaking through Jeevan Reddy, J. (as his lordship then was) observed that sub-rule (7) of Rule 12 empowers the assessing authority to receive C forms even after making the assessment, provided the dealer satisfies the authority that he was prevented by sufficient cause from filing the said forms before making of the assessment. "The proviso to subrule (7) does not prescribe any time within which a dealer can file C forms, which means that at any time after making of the assessment, a dealer can file the forms and so long as he is able to satisfy the authority about the sufficient cause contemplated by the proviso, the authority shall have to receive those forms" (emphasis is of ours). 3. 3. The decision of this Court in Rajeswari Stone's case (supra) received its affirmation at the hands of the apex Court in STATE OF A.P. v. HYDERABAD ASBESTOS CEMENT PROD. LTD. It is, however, clarified by the apex Court that the power to receive C forms even by the first assessing authority can be exercised only where sufficient cause is shown by the dealer for not filing them up to the time of assessment. 4. It is thus clear that sub-rule (7) of Rule 12 of the Rules confers power upon the assessing authority to receive C forms where sufficient cause is shown by the dealer for not filing them up to the time of assessment. There is no limitation as such provided for receiving the C forms and they can be received at any time after the order of assessment, provided sufficient cause is shown. We may, however, hasten to add that the making of assessment itself cannot be postponed at the instance of a dealer in order to enable the dealer to produce such C forms, if such postponement results in bar of limitation in making the assessment. It means that if an assessment can be postponed and if such postponement is not hit by the limitation, time can always be extended by the assessing authority in order to enable any dealer to produce the C forms and in case, if such C forms are not produced, it does not take away the right of the dealer to produce them even after making of the assessment order, provided a sufficient cause is shown. 14. This legal position is not disputed by the learned Special Counsel appearing for the respondents. The learned Special Counsel also agreed that in view of the settled legal position, the matter be remanded to the 1st respondent. 15. In this view of the matter, both these Writ Petitions are allowed; the impugned orders passed by respondents 1 and 2 in respect of each of the petitioners herein are set aside and the matters are remitted back to the 2nd respondent for fresh consideration. The petitioners are granted three (3) weeks time from the date of receipt of a copy of this order to file the C-Forms which are now available with the respective petitioners before the 2nd respondent along with an explanation why they could not be filed earlier. The petitioners are granted three (3) weeks time from the date of receipt of a copy of this order to file the C-Forms which are now available with the respective petitioners before the 2nd respondent along with an explanation why they could not be filed earlier. The petitioners are also permitted to raise the additional ground of bar of limitation for the assessment for the period April, 2015 to January, 2016 before the 2nd respondent. A personal hearing shall be afforded to the petitioners and then a reasoned order shall be passed by the 2nd respondent and communicated to both the petitioners. No costs. 16. Pending miscellaneous petitions, if any, in these Writ Petitions shall stand closed.