JUDGMENT
A. Pasayat, J.
1. Petitioner calls in question legality of the direction given by the Additional Commissioner of Sales Tax to pay Rs. 4 crores against a demand of Rs. 6,29,61,487 raised for the assessment year 1991-92 under the Central Sales Tax Act, 1956 (in short, “the Act”). The broad break-up of the demand relates to the following alleged non-compliance and/or disallowances :
(i) Non-submission of "C" and "D" forms ... Rs. 476.36 lakhs
(ii) Non-submission of "H" forms and proof
of export ... Rs. 54.59 lakhs
(iii) Claim of branch transfer disallowed and
subjected to tax ... Rs. 98.67 lakhs
2. The petitioner, a registered dealer under the Act, carries on business of manufacturing and selling different kinds of refractory products. The assessment was completed ex parte on December 9, 1993, on the ground that in spite of several opportunities, relevant books of accounts and/or declaration forms were not produced. The petitioner has filed appeal before the Assistant Commissioner and moved for stay. The Assistant Commissioner of Sales Tax, Sambalpur Range, by order dated January 20, 1994, directed payment of Rs. 5 crores. During pendency of the revision application before the Commissioner of Sales Tax, the petitioner moved this Court for a direction to the revisional authority to deal with the revision application keeping in view the position of law elaborated in Dredging Corporation of India Ltd. v. State of Orissa [1991] 82 STC 235. The Additional Commissioner has disposed of the application by order dated February 19, 1994. Before the Additional Commissioner it was submitted that 508 “C” and “D” forms were filed before the Sales Tax Officer on December 13, 1993, covering turnover of Rs. 3,564.50 lakhs. But the Sales Tax Officer ante-dated the order, and purported to have disposed of the matter on December 9, 1993. The fact that the order was ante-dated is apparent from the fact that the petitioner filed an application for adjournment and filed 59 “C” forms on December 9, 1993. The prayer was to grant time till December 31, 1993. On December 10, 1993, the petitioner received an order dated December 9, 1993, refusing the prayer for adjournment on the ground that the petitioner was guilty of non-production of accounts. On December 13, 1993, the petitioner appeared before the Sales Tax Officer, filed hazira and produced documents and statutory declaration forms “C”, “D”, “F’ and other details of exports. The petitioner also filed a petition seeking adjournment till January 31, 1994, for filing the balance declaration forms. Nothing was indicated to the petitioner on that day. On December 16, 1993, the petitioner received a communication dated December 14, 1993, inter alia, stating that the application dated December 13, 1993, deserved no consideration, as the assessment had been completed on December 9, 1993. On that date the order of assessment purported to have been passed on December 9, 1993, was communicated. According to the petitioner, it filed hazira on December 13, 1993, seeking time till January 31, 1994. That day nothing was communicated to it, though the matter is claimed to have been disposed of on December 9, 1993. Therefore, it is apparent that the order of assessment has been ante-dated. During the course of hearing of the stay application the petitioner on January 13, 1994, filed large number of declaration forms, which were not considered by the first appellate authority. They were returned to the petitioner on the ground that the same should be filed at the time of hearing of the appeal. It was placed before the Additional Commissioner that 26 Nos. of “C” forms received after passing of the order of assessment were produced before the Assistant Commissioner and they covered transactions of Rs. 169.98 lakhs. Two “C” forms covering transaction of Rs. 146.46 lakhs were also produced before the revisional authority. In addition to production of declaration forms, the petitioner also submitted that the company filed 86 Nos. of “C” forms along with various other documents on December 6, 1993. On December 9, 1993, the petitioner filed further 59 forms and prayed for adjournment for producing the balance. These were not taken note of by the assessing officer. It was submitted that the declaration forms were to be collected from various places all over the country, and even though the number of adjournments has been termed to be large, that is not factually correct. The revisional authority held that large number of forms were granted to the purchasing dealers prior to date of assessment and there was no reason as to why these declaration forms could not be produced at the time of assessment. The plea of ante-dating was also not accepted. He found that the concessions/deductions/exemptions claimed by the assesses were to be proved by production of necessary proof, and since the petitioner has failed to discharge the onus required under law, the assessing officer had no alternative than to reject the same. However, taking note of the plea of financial difficulty, the petitioner was directed to pay Rs. 4 crores.
3. The learned counsel for the petitioner submits that the approach of the revisional authority has been rather unrealistic. He has tried to justify the action of the assessing officer without taking note of various discrepancies highlighted by the petitioner. It is submitted that the declaration forms were before the revisional authority, and he had not taken note of them on the ground that the petitioner failed to produce the same before the assessing officer. He did not take note of the difficulties indicated by the petitioner, and the reasons justifying the delayed presentation. It is submitted that the direction to pay Rs. 4 crores is arbitrary and without taking note of the financial constraints of the petitioner.
4. It is trite law that when the assessee shows sufficient cause for non-production of declaration forms at the stage of assessment, they can be accepted at the first appellate stage, and in a given case they may also be accepted as additional evidence by the Tribunal. The assessee does not gain by withholding the declaration forms in support of its claim of deduction. A liberal attitude should be taken because law permits in certain cases exemption/deduction/concession subject to filing of declaration forms. If declaration forms are produced it would be equitable and proper to accept the forms and grant concession/deduction/ exemption. However, where the assessee is negligent, callous and does not place materials to show that effort was made to get the declaration forms, the situation would be different. When the assessee offers plausible explanation, then the taxing authorities would not be justified in refusing to accept the declaration forms. In a given case, there may be large number of declaration forms to be collected from all over the country. If the selling dealer makes all possible efforts for getting the same, but the purchasing dealer does not get declaration forms from his assessing officer, it would be unjust to deny benefit to the selling dealer. Subsequently, if the forms are granted and the purchasing dealer issues the same to the selling dealer, can it be said that the assessee has to lose the benefit ? The answer is an emphatic no. The revisional authority has observed that some of the declaration forms were issued to the purchasing dealer before the date of assessment. The learned counsel for the petitioner submits that even in spite of best efforts and repeated reminders to the purchasing dealer by the selling dealer, if former does not issue forms and subsequently issues the same, and the selling dealer produces the forms before the first appellate authority, the appellate authority should accept the forms. There can be no dispute that this proposition is sound as a general rule. But the selling dealer has to show that he was making efforts and in spite of it, there was no response by the purchasing dealer. In such a case, the declaration forms even if issued to the purchasing dealer by his. assessing officer prior to the date of assessment of selling dealer have to be accepted.
5. In the case at hand, if the declaration forms which have been produced before the Assistant Commissioner and the revisional authority by the petitioner at the time of hearing are accepted, the tax demand of about Rs. 465.72 lakhs would be reduced. Similarly forms covering transaction of Rs. 86,30.463 were claimed to have been filed before the assessing officer on December 13, 1993, relating to a tax demand of Rs. 13.97 lakhs. There is no dispute that these were produced before the assessing officer on December 13, 1993, and subsequently at the time of hearing of the stay application. Similarly H forms covering transaction of Rs. 2,28,13,654 were produced before the Assistant Commissioner. If these arc accepted, the tax demand would be reduced by Rs. 30.51 lakhs. We do not express any opinion about merits of the case which shall be adjudicated by the first appellate authority. Further, without expressing any final opinion in the matter relating to the acceptability of the declaration forms, but considering the fact that the declaration forms have been produced before the authorities, we direct that in case the petitioner pays Rs. 1,25,00,000 (rupees one crore twenty-five lakhs) by March 16, 1994, realisation of the balance shall be stayed till disposal of the first appeal. Any amount paid towards the disputed amount shall be adjusted from the aforesaid amount of Rs. 1,25,00,000.
The writ application is accordingly disposed of.
S.K. Mohanty, J.
6. I agree.