{"id":86238,"date":"2004-01-07T00:00:00","date_gmt":"2004-01-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashok-leland-ltd-vs-state-of-tamil-nadu-and-anr-on-7-january-2004"},"modified":"2016-10-10T11:28:28","modified_gmt":"2016-10-10T05:58:28","slug":"ashok-leland-ltd-vs-state-of-tamil-nadu-and-anr-on-7-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashok-leland-ltd-vs-state-of-tamil-nadu-and-anr-on-7-january-2004","title":{"rendered":"Ashok Leland Ltd vs State Of Tamil Nadu And Anr on 7 January, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ashok Leland Ltd vs State Of Tamil Nadu And Anr on 7 January, 2004<\/div>\n
Author: S Sinha<\/div>\n
Bench: V.N. Khare. Cj, S.B. Sinha, A.R. Lakshmanan<\/div>\n
           CASE NO.:\nAppeal (civil)  976-979 of 2001\n\nPETITIONER:\nASHOK LELAND  LTD.\n\nRESPONDENT:\nSTATE OF TAMIL NADU AND ANR.\n\nDATE OF JUDGMENT: 07\/01\/2004\n\nBENCH:\nV.N. KHARE. CJ & S.B. SINHA & A.R. LAKSHMANAN\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2004(1) SCR 306<\/p>\n
S.B. Sinha, J.\n<\/p>\n
1. Leave granted in S.L.P. (Civil) No. 5579 of 2001.\n<\/p>\n
2. Interpretation of Section 6A of the Central Sales Tax Act, 1956 is
\ninvolved in these appeals and the writ petition. The appeals arise out of
\njudgments and orders dated 12.3.1999 passed by the Tamil Nadu Sales Tax
\nAppellate Tribunal in T.A. Nos. 353, 456 and 457 of 1997 and 47 of 1998;
\ndated 13.11.2000 in STA No. 459 of 1999; dated 14.11.1997 in Appeal No. 383
\nof 1996; and dated 2.12.1997 in Tax Case (Revision) No. 1096 of 1990 passed
\nby the High Court of Madras.\n<\/p>\n
3. The writ petition under Article 32 was filed by the Petitioner inter
\nalia for declaring that Section 9(2) of the Central Sales Tax Act, 1956
\ndesignating the authorities of the movement State to adjudicate upon the
\nsitus of sales and character of a transaction in the course of an inter-
\nState sale, whether as falling under Section 3 or under Section 4 of the
\nCentral Sales Tax Act, 1956, is arbitrary, unworkable and ultra vires
\nArticles 14, 19(1)(g) and Chapter XIII of the Constitution of India, in
\nmatters involving elements of transactions taking place in more than one
\nState.\n<\/p>\n
BACKGROUND FACTS:\n<\/p>\n
Civil Appeal No. 976-979 of 2001<\/p>\n
4. The appellants herein are engaged in manufacture of commercial vehicles.
\nThey have their factories at Bhandara in the State of Maharashtra and Alwar
\nin the State of Rajasthan for manufacture of popular models of passenger
\nchassis. They are, inter alia, registered under Tamil Nadu General Sales
\nTax Act, 1959 (hereinafter called for the sake of brevity as “the State
\nAct”) as also the Central Sales Tax Act, 1956 (hereinafter referred to as
\n“the Central Act”. They are registered as dealers in the Office of
\nAssistant Commissioner (Central Assessment Circle-III), the third
\nrespondent herein, under both the Acts.\n<\/p>\n
5. Indisputably, the appellants have several regional offices throughout
\nthe country wherewith Regional Sales Offices are attached for the purpose
\nof receiving, warehousing and selling the vehicles produced by the
\nappellants. The appellants contend that they transfer both goods vehicle
\nand passenger chassis to their different Regional Sales Offices for
\nmarketing the products which in turn are registered under the Sales Tax
\nlaws governing the State in Question. The stock of vehicles are transferred
\nto the Regional Sales Offices under the cover of stock transfer invoices,
\nexcise gate pass, and entrusted to the transport contractors for movement
\nand delivery thereof where upon transfer of such vehicles local sales tax
\nare collected and paid by the different Regional Sales Offices. The
\nappellants herein upon transfer of such purported stocks of vehicles filled
\nup forms in terms of Section 6A of the Central Act, the original whereof
\nhaving been filed before the assessing authority of the State of Tamil
\nNadu, an enquiry was made and\/or caused to be made pursuant whereto and in
\nfurtherance whereof the claim of the appellants to the effect that by
\nreason of such transactions transfer of stock of goods had taken effect as
\ncontra-distinguished from inter-State sale was accepted. On or about
\n29.11.1990, the assessing authority upon completion of the order of
\noriginal assessment under the Central Act allowed transfer of stocks of the
\nmotor vehicle chassis and other automobile parts to the branches stating:\n<\/p>\n
“The dealers have got 26 branch sales depots in other States. They have
\ndispatched their, products – chassis, spare parts etc., to their own sales
\ndepots in other States for sales and the goods involved in the stock
\ntransfer have moved from Tamil Nadu to other State as “stock transfer”,
\ni.e., the movement was occasioned by reason of branch transfer and not by
\nreason of sale. The dispatches are supported by stock transfer invoices,
\ntransport details and Form F. These records have been verified with the
\nexemption claimed.”\n<\/p>\n
6. An order of assessment for the year 1987-88 dated 28.8.1991 was passed
\nfinding:\n<\/p>\n
“The dealers have filed detailed statement of stock transfer of vehicles to
\ntheir outside State Regional Sales Offices and Spares to their warehouses.
\nThe statement was verified in detail with reference to Form “F” declaration
\nfiled by them and dispatching documents. The dealers have also filed
\ncompleted assessment orders of their Regional Sales Offices in other
\nStates. Their claim was examined in length and found to be in order. The
\nForm “F” filed by them are accepted and the exemption granted.”\n<\/p>\n
[Underlining is mine for emphasis)<\/p>\n
7. The assessing authority despite the said findings issued notices
\ndirecting the appellants to show cause as to why the order dated 29.11.1990
\nshould not be revised and the stock of vehicles allegedly transferred to
\nthe Regional Sales Offices so far as the same related to the State
\nTransport Undertakings are concerned should not be taxed as inter-State
\nsales taxable in Tamil Nadu.\n<\/p>\n
8. The appellants filed their show cause inter alia Questioning the
\njurisdiction of the assessing authority to reopen the assessment inter alia
\non the ground that the issues stood determined in terms of the provisions
\nof Sub-section (2) of Section 6A of the Central Act relying or on the basis
\nof the declarations made by the appellants in terms of Form F. However, the
\nreassessment proceeding was completed relying upon the provisions contained
\nin Section 16 of the State Act read with Section 9(2) of the Central Act as
\nalso in terms of the decision of this Court in Sahney Steel & Press Works
\nLtd. v. CTO,  : AIR1985SC1754 . Consequent to the said order the sales of
\nthe Regional Sales Offices in relation to the deliveries made to the State
\nTransport Undertakings of other States were reassessed. Penalty for non-
\ndisclosure of the turnover as taxable sales in terms of Section 16(2) of
\nthe State Act read with Section 9(2) of the Central Act was also imposed.
\nSimilar show cause notices were issued in relation to other assessment
\nyears also.\n<\/p>\n
9. A writ petition was filed by the appellants before the Madras High Court
\nquestioning the said orders inter alia contending that having regard to the
\nprovisions contained in Section 6A of the Central Act and further having
\nregard to the fact that the appellants had paid tax to the other States the
\norders impugned therein were illegal. The States wherein the local sales
\ntax had been paid in terms of the respective State Acts, namely, State of
\nKerala, Karnataka, Andhra Pradesh, Maharashtra and Gujarat, were impleaded
\nas parties therein and they in turn also questioned the jurisdiction of the
\nauthorities of the State of Tamil Nadu to enquire about the transactions
\ncarried out by the appellants. A question was also raised that the Madras
\nHigh Court had no jurisdiction to grant any relief touching the orders of
\nassessment completed under the respective State law. Upholding the
\njurisdiction of Tamil Nadu authorities to reopen an assessment completed
\ndespite acceptance of declaration in Form F, the Madras High Court by a
\njudgment and order dated 13.6.1996 dismissed the said writ application
\ninter alia holding that they had no jurisdiction to grant any relief.
\nThereafter the reassessment was completed and penalty was imposed.\n<\/p>\n
JUDGMENT OF THIS COURT :\n<\/p>\n
10. The matter came up for consideration before this Court in Ashok Leyland
\nv. Union of India and Ors.<\/a> since reported in  : [1997]2SCR224 at the
\ninstance of the appellant herein; and upon referring to the decisions
\nrendered in Balabhagas Hulaschand v. State of Orissa<\/a>  : [1976]2SCR939 ,
\nIzhar Ahmad Khan v. Union of India<\/a>  : AIR1962SC1052 . Sodhi Transport Co.
\nv. State of U.P.  : [1986]1SCR939 and several others, this Court by a
\njudgment dated 20.2.1997 held:\n<\/p>\n
(a) Section 6A does not create conclusive presumption as contended on
\nbehalf of the assessee.\n<\/p>\n
(b) An order of assessing authority accepting Form F, whether passed during
\nthe assessment or at any point earlier thereto, forms part and parcel of
\nthe order of assessment.\n<\/p>\n
(c) Its amenability to the power of reopening and revision depends upon the
\nprovisions of the concerned sales tax enactments by virtue of the operation
\nof Section 9(2) of the Central Act.\n<\/p>\n
(d) It is not possible to accept that an order under Section 6A(2) has an
\nindependent existence.\n<\/p>\n
(e) An order refusing to accept Form F may or may not be appealable
\nindependently depending upon the provisions of the State sales tax
\nenactments, but it is certainly capable of being questioned if an appeal is
\npreferred against the order of assessment.\n<\/p>\n
(f) If orders accepting Form F are sought to be reopened, it can be done as
\npart of reopening of assessment or may be done independently, which would
\ndepend upon the language of the relevant provisions of the concerned State
\nActs.\n<\/p>\n
(g) It is permissible to reopen an assessment accepting Form F as true
\nwithout, even though such a reassessment necessarily leads to revision\/
\nmodification of the assessment order.\n<\/p>\n
(h) If the reopening is confined to the order accepting Form F as true, the
\nenquiry shall be confined to the matters relevant thereto. In that case, it
\nwas noticed that the assessments were sought to be reopened only in respect
\nof the turnover relating to sales of vehicles to State Transport
\nUndertakings and not turnover relating to persons other than State
\nTransport Undertakings.\n<\/p>\n
(i) In the facts of the case, the question as to whether the power had been
\nexercised validly or not did not call for consideration. If the assessing
\nauthority decided against the appellants, it would foe open to the assessee
\nto file appeal (s) directly before the Tribunal (in order to shorten the
\nlitigation and in the interest of justice). If and when the Tribunal
\ndecides against the appellants, it shall be open to the appellants to
\napproach the Supreme Court.\n<\/p>\n
11. Having said so, this Court noticed the anomalous situation created by
\nreason of the absence of a proper mechanism to adjudicate the question as
\nto whether a particular transaction is an inter-State sale or a local sale
\nin the presence of an assessee and the relevant States concerned and the
\nneed for the Parliament to intervene and provide for a suitable mechanism.\n<\/p>\n
12. The Court appreciated the difficulties to be faced by the appellant
\nhaving regard to the fact that it had paid tax to the other State
\nGovernments. This Court further noticed the contention of the appellant
\nthat the attitude adopted by the sales tax authorities in Tamil Nadu is not
\nconducive of judicial conduct as they are pre-determined to treat the
\ntransactions as inter-State sale and levy tax thereon ignoring the fact and
\ncorrect legal situation, but did not express any opinion on the correctness
\nor otherwise of the said submissions. It, however, felt the necessity of
\nevolving a central mechanism which would decide once for all questions of
\nthis nature. Elucidating certain instances, it was opined that although the
\nassessment proceedings before certain States had become final, this Court
\nin exercise of its jurisdiction under Article 32 or 136 or 142 of the
\nConstitution of India may issue appropriate directions, whereupon the
\nfollowing directions were issued :\n<\/p>\n
“22…Let the Tamil Nadu assessing authorities first decide the matters
\nbefore them. Thereafter, if the order’s are against the appellant, we
\npermit the appellant to file the appeal(s) directly before the Tribunal. If
\nthe Tribunal decides in favour of the appellant, no further question would
\narise. But if it decides against the appellant, to wit, if it holds that
\nthe sale of vehicles to the STUs of various States are inter-State sales
\nand if it is found that those very transactions have also been taxed as
\nintra-State sales under the State sales tax enactments of another State,
\nthat would be the stage for considering the advisability of giving
\nappropriate directions of the nature contemplated above by this Court –
\nthat is, of course, if by that time, no Central mechanism to meet such a
\nsituation comes into existence.\n<\/p>\n
23. In the interest of inter-State trade and commerce, the suggestion for
\ncreation of a Central mechanism to decide such disputes – which are really
\nin the nature of inter – State disputes – may be well worth considering;
\nevery dealer affected may not be in a position to approach this Court for
\nappropriate directions. It is for the Government of India to consider this
\naspect and take necessary decision in that behalf.”\n<\/p>\n
SUBSEQUENT PROCEEDINGS :\n<\/p>\n
13. Pursuant to or in furtherance of the said directions an order of
\nreassessment was passed for the years 1988-89 imposing tax on the sales of
\nthe appellants to the State Transport Undertakings at the respective
\nRegional Sales Offices by an order dated 12.12.1997. It, however, appears
\nthat when companies similarly situated, as for example, Indicarb Limited
\napproached the State Appellate Tribunal, it refused to entertain an appeal
\nthere against holding that the direction of this Court in Ashok Leyland
\n(supra) was confined to the fact of that case. The Special Leave Petitions
\nhaving been filed by the assesses, this Court in Civil Appeal No.
\n14406-14408 of 1997 by an order dated 17.3.1998 held:\n<\/p>\n
“As these special leave petitions and writ petitions involve important
\nquestions involving conflict between States’ sales tax assessment
\nproceedings and the Central sales tax assessment proceedings regarding the
\nalleged very same sale transactions and as the problem is of a recurring
\nnature and as a decision of a Bench of two Judges of this Court in Ashok
\nLeyland Ltd. v. Union of India and Ors.<\/a>  : [1997]2SCR224 , has to be
\napplied with suitable modifications, if required, it would be appropriate
\nthat these matters are heard by a Bench of three learned Judges. In the
\nmeantime, the Union of India who is one of the respondents in these
\nproceedings, may have to be heard with a view to suggest a modus operandi
\nto resolve this conundrum. We, therefore, request the learned Attorney
\nGeneral to appear for respondent No. 2 Union of India for assisting the
\ncourt in these proceedings.\n<\/p>\n
The office may obtain orders from Hon’ble the Chief Justice for placing
\nthese matters before an appropriate Bench of three learned Judges.”\n<\/p>\n
14. Notices, pursuant to the said directions, were issued to the concerned
\nStates. Thereafter, even for the subsequent periods also the Appellate
\nTribunal upheld the order passed in Indicarb Limited which are also the
\nsubject matter of challenge before us.\n<\/p>\n
PARLIAMENTARY INTERVENTION :\n<\/p>\n
15. We may notice that having regard to the several orders passed in the
\nconnected matter, the Parliament enacted Central Sales Tax (Amendment) Act,
\n2001 and Finance Act, 2002. Suggestions, as regards certain provisions of
\nthe said Acts, however, having been mooted at the Bar, the matter is said
\nto be receiving fresh consideration at the hands of the Central Government.\n<\/p>\n
16. It is also not in dispute that by enacting Central Sales Tax
\n(Amendment) Act, 2001 by Central Act 20 of 2002, which came into force from
\n11th May, 2002, Section 2(g) of the Act has been substituted by a new sub-
\nsection by which the definition of sale has been widened to include the
\ndeemed sales defined by Article 366(29-A) of the Constitution to enable the
\nlevy of Central Sales Tax inter alia on the transactions involving transfer
\nof property in the goods involved in the execution of works contract or
\ntransfer of the right to use the goods so that now even these transactions
\nare open to levy by two different States either as inter-State transaction,
\nor intra-State transaction. Section 6A of the Central Act was also amended
\ninsofar as in Sub-section (1) thereof the following words have been
\ninserted:\n<\/p>\n
“If the dealer fails to furnish such declaration, then, the movement of
\nsuch goods shall be deemed, for all purposes of this Act, to have been
\noccasioned as a result of sale.”\n<\/p>\n
17. The appellants filed applications in these appeals, seeking leave to
\nraise additional grounds in the light of the said amendment.\n<\/p>\n
SUBMISSIONS:\n<\/p>\n
18. Mr. K. Parasaran, learned senior counsel appearing on behalf of the
\nappellants would inter alia submit that the ratio arrived at by this Court
\nin Ashok Leyland (supra) requires a fresh look insofar as by reason of Sub-
\nsection (2) of Section 6A of the Central Act, the statute provided for
\nconclusive evidence as regards the nature of transaction and as the orders
\npassed thereunder attained finality, the same could not have been reopened
\non any ground whatsoever. Drawing our attention to the history of
\nlegislation as also the case laws leading to incorporation of Article 286,
\nenactment of the Central Act as also amendments made in Article 269 of the
\nConstitution of India, the learned counsel would submit that once by reason
\nof the Central Act in terms of the determination made by the statutory
\nauthorities thereunder, certain transactions by creating a legal fiction
\nwere kept outside the purview of the Central Act, the assessing authorities
\ncannot exercise their purported jurisdiction of reopening an order of
\nassessment under Section 16(2) of the State Act or Section 9(2) of the
\nCentral Act. Formulation of principles for determining when a sale or
\npurchase of consignment of goods takes place in the course of inter-state
\ntrade or commerce being within the exclusive domain of the Parliament
\nhaving regard to Clause (3) of Article 269 of the Constitution of India,
\nMr. Parasaran, would contend; statutory authorities created under the State
\nAct could not exercise any jurisdiction contrary to or inconsistent
\ntherewith.\n<\/p>\n
19. The learned counsel would submit that the word “determination”
\nsignifies expression of opinion which ends a controversy or a dispute by
\nsome authority to whom it is submitted under a valid law.\n<\/p>\n
20. Mr. Parasaran would contend that in terms of Section 6A of the Central
\nAct, as it then stood, the assessee had two options, namely, to file Form F
\nor subjected himself to an assessment proceeding. If the assessee opts to
\nfile a declaration in terms of Form F, whereupon an order is passed holding
\nan enquiry by the assessing authority; the same being conclusive in nature,
\nno proceeding for reopening the same would be permissible in law. Reliance
\nin this connection has been placed on Izhar Ahmed Khan (supra), Balabhagas
\nHulaschand (supra) and Mahant Dharam Das etc. v. The State of Punjab and
\nOrs.  : [1975]3SCR160 .\n<\/p>\n
21. The learned counsel would argue that the expressions “for the purpose
\nof the Act” would imply “for the purpose of all the provisions of the Act”
\nand, thus, once an order is passed under Sub-section (2) of Section 6A of
\nthe Central Act, Section 9(2) thereof will have also no application
\nwhatsoever. Reliance in this behalf has been placed by Mr. Parasaran on
\nM.K. Kochu Devassy v. State of Kerala<\/a>  : 1979CriLJ147 .\n<\/p>\n
22. Mr. Parasaran would urge that while exercising the option, it is
\nmandatory for the assessee to supply all information(s) which are required
\nin terms of Form F and once compliance of statutory requirements are made,
\nthe adjudication thereupon shall become final and binding. He in support of
\nthe said contention placed reliance on Shrisht Dhawan v. Shaw Brothers<\/a>  :
\nAIR1992SC1555 .\n<\/p>\n
23. According to the learned counsel, such a provision has been inserted so
\nas to emphasise the necessity of expeditious determination as regard a
\ntransaction involving transfer of goods in terms whereof different States
\nclaim themselves to be entitled to levy different rates of taxes under the
\nrespective State Acts. If with a view to give effect thereto, no appeal has
\nbeen provided, the same would not invalidate the law. In other words,
\nargument of Mr. Parasaran is that Section 6A has been granted a higher
\nstatus than the proceeding of assessment under the general law.\n<\/p>\n
24. Mr. B. Sen, the learned senior counsel appearing on behalf of the State
\nof West Bengal while supporting the submission of Mr. Parasaran would
\nfurther argue that the Central Act being relatable to Article 286 of the
\nConstitution of India as also Entry 97 of List I of the Seventh Schedule of
\nthe Constitution, a presumption must be drawn that the purpose thereof was
\nto take the taxing power of the State taken away and, thus, in relation to
\nsuch transactions the State cannot levy any tax. It is evident that order
\nof such nature passed by the assessing authorities of the State of Tamil
\nNadu would not only affect the assesses but also other States as well and
\nonce it is held that the burden of proof has been discharged by the
\nassessee, such transactions must be held to have taken place outside the
\npurview of the Central Act.\n<\/p>\n
25. Mr. A.K. Ganguli, the learned senior counsel appearing on behalf of the
\nrespondents, per contra, would contend that the question as regard the
\nconclusiveness or otherwise of an order under Sub-section (2) of Section 6A
\nof the Act shall operate as res judicata, keeping in view the fact that the
\nsaid issue has already been determined by this Court in Ashok Leyland
\n(supra) and, thus, binds the parties herein. The learned counsel would
\ncontend that Section 6A of the Act cannot be given a higher status than the
\nState Act or Section 9(2) of the Central Act inasmuch as an order passed in
\nterms of Sub-section (2) thereof is passed merely in aid of assessment and
\nin that view of the matter if an order of assessment can be appealed
\nagainst or subjected to a reopening proceeding, the same legal provisions
\nmust be held to be applicable also in relation to an order passed under
\nSub-section (2) of Section 6A.\n<\/p>\n
26. Mr. Ganguli has drawn our attention to the findings of the Tribunal to
\nthe effect that raids were conducted by the authorities and that the
\nappellant herein had escaped proper assessment by taking recourse to
\nsuppressio veri and suggestio falsi. According to the learned counsel, as
\nfresh materials had been discovered, a reasoned show cause notice was
\nissued and pursuant thereto and in furtherance thereof, the impugned orders
\nhad been passed, and in that view of the matter no case has been made out
\nfor interference therewith.\n<\/p>\n
STATUTORY PROVISIONS:\n<\/p>\n
27. ‘Sale’ has been defined in Tamil Nadu General Sales Act, 1959 as:\n<\/p>\n
“2(n) “Sale” with all its grammatical variations and cognate expressions
\nmeans every transfer of the property in goods (other than by way of a
\nmortgage, hypothecation, charge or pledge) by one person to another in the
\ncourse of business for cash, deferred payment or other valuable
\nconsideration and includes –\n<\/p>\n
(i) a transfer otherwise than in pursuance of a contract, of property in
\nany goods for “cash, deferred payment or other valuable consideration;\n<\/p>\n
(ii) a transfer of property in goods (whether as goods or in some other
\nform) involved in the execution of a works contract:…”\n<\/p>\n
28. ‘Turnover’ in the said Act has been defined as under:\n<\/p>\n
“2(r) “turnover” means the aggregate amount for which goods are brought or
\nsold, or delivered or supplied or otherwise disposed of in any of the ways
\nreferred to in Clause (n), by a dealer either directly or through another,
\non his own account or on account of others whether for cash or for deferred
\npayment or other valuation consideration, provided that the proceeds of the
\nsale by a person of agricultural or horticultural produce, other than tea
\nand rubber (natural rubber latex and all varieties and grades of raw
\nrubber), grown within the State by himself or on any land in which he has
\nan interest whether as owner, usufructuary mortgagee, tenant or otherwise,
\nshall be excluded from his turnover ;”\n<\/p>\n
29. Section 12 of the said Act provides for the procedure to be followed by
\nthe assessing authority in terms whereof the dealer is required to file the
\nprescribed return relating to his turnover submitted in the prescribed
\nmanner within the period prescribed therefore. The Act provides for self-
\nassessment subject of course to the exceptions contained in Clause (b) of
\nSub-section (1) of Section 12. The errors contained in the return can,
\nhowever, be corrected. A dealer making self-assessment is required to make
\ntrue and correct statements of fact. In the event, the dealer does not file
\na return within the prescribed period and the return is found to be
\nincorrect: in addition to the tax assessed, the assessing authority may
\ndirect it to pay the amount of penalty levied in terms of Sub-section (3)
\nof Section 12.\n<\/p>\n
30. Section 16 provides for assessment of escaped turnover which reads
\nthus:\n<\/p>\n
“16. Assessment of escaped turnover. –\n<\/p>\n
(1)(a) Where, for any reason, the whole or any part of the turnover of
\nbusiness of a dealer has escaped assessment to tax, the assessing authority
\nmay, subject to the provisions of Sub-section (2), at any time within a
\nperiod of five years from the date of order of the final assessment by the
\nassessing authority to determine to the best of its judgment the turnover
\nwhich has escaped assessment and assess the tax payable on such turnover
\nafter making such enquiry as it may consider necessary and after giving the
\ndealer a reasonable opportunity to show cause against such assessment.\n<\/p>\n
(b) where, for any reason, the whole or any part of the turnover of
\nbusiness of a dealer has been assessed at a rate lower than the rate at
\nwhich it is assessable, the assessing authority may, at any time within
\nperiod of five years from the date of order of the final assessment by the
\nassessing authority reassess the tax due after making such enquiry as it
\nmay consider necessary and after giving the dealer a reasonable opportunity
\nto show cause against such re-assessment.”\n<\/p>\n
31. In case of willful non-disclosure of assessable turnover by the dealer
\nwhile passing an order of reassessment, penalty can also be imposed. Sub-
\nsection (3) of Section 16 provides for the manner in which limitation is to
\nbe computed. Section 31 of the Act provides for appeal.\n<\/p>\n
32. The relevant provisions of the Central Sales Tax Act, 1956 are as under
\n:\n<\/p>\n
2(b) “dealer” means any person who carries on (whether regularly or
\notherwise) the business of buying, selling, supplying or distributing
\ngoods, directly or indirectly, for cash or for deferred payment, or for
\ncommission remuneration or other valuable consideration, and includes–\n<\/p>\n
(i) a local authority, a body corporate, a company, any co-operative
\nsociety or other society, club, firm, Hindu undivided family or other
\nassociation of persons which carries on such business;\n<\/p>\n
(ii) a factor, broker, commission agent, del credere agent, or any other
\nmercantile agent, by whatever name called, and whether of the same
\ndescription as hereinbefore mentioned or not, who carries on the business
\nof buying, selling, supplying or distributing, goods belonging to any
\nprincipal whether disclosed or not; and<\/p>\n
(iii) an auctioneer who carries on the business of selling or auctioning
\ngoods belonging to any principal, whether disclosed or not and whether the
\noffer of the intending purchaser is accepted by him or by the principal or
\nnominee of the principal.\n<\/p>\n
Explanation 1.–Every person who acts as an agent, in any State, of a
\ndealer residing outside that State and buys, sells, supplies, or
\ndistributes, goods in the State or acts on behalf of such dealer as –\n<\/p>\n
(i) a mercantile agent as defined in the Sale of Goods Act, 1930 (3 of
\n1930), or<\/p>\n
(ii) an agent for handling of goods or documents of title relating to
\ngoods, or<\/p>\n
(iii) an agent for the collection or the payment of the sale price of goods
\nor as a guarantor for such collection or payment and every local branch or
\noffice in a State of a firm registered outside that State or a company or
\nother body corporate, the principal office or headquarters whereof is
\noutside that State, shall be deemed to be a dealer for the purposes of this
\nAct.\n<\/p>\n
Explanation 2.– A Government which, whether or not in the course of
\nbusiness, buy, sells, supplies or distributes, goods, directly or
\notherwise, for cash or for deferred payment or for commission, remuneration
\nor other valuable consideration, shall except in relation to any sale,
\nsupply or distribution of surplus, unserviceable or old stores or materials
\nor waste products or obsolete or discarded machinery or parts or
\naccessories thereof, be deemed to be a dealer for the purposes of this Act;\n<\/p>\n
(g) “sale”, with its grammatical variations and cognate expressions, means
\nany transfer of property in goods by one person to another for cash or for
\ndeferred payment or for any other valuable consideration, and includes,-\n<\/p>\n
(i) a transfer, otherwise than in pursuance of a contract, of property in
\nany goods for cash, deferred payment or other valuable consideration;\n<\/p>\n
(ii) a transfer of property in goods (whether as goods or in some other
\nform) involved in the execution of a works contract;\n<\/p>\n
(iii) a delivery of goods on hire-purchase or any system of payment by
\ninstalments;\n<\/p>\n
(iv) a transfer of the right to use any goods for any purpose (whether or
\nnot for a specified period) for cash, deferred payment or other valuable
\nconsideration;\n<\/p>\n
(v) a supply of goods by any unincorporated association or body of persons
\nto a member thereof for cash, deferred payment or other valuable
\nconsideration;\n<\/p>\n
(vi) a supply, by way of or as part of any service or in any other manner
\nwhatsoever, of goods, being food or any other article for human consumption
\nor any drink (whether or not intoxicating), where such supply or service,
\nis for cash, deferred payment or other valuable consideration, but does not
\ninclude a mortgage or hypothecation of or a charge or pledge on goods;\n<\/p>\n
(j) “turnover” used in relation to any dealer liable to tax under this Act
\nmeans the aggregate of the sale prices received and receivable by him in
\nrespect of sales of any goods in the course of inter-State trade or
\ncommerce made during any prescribed period and determined in accordance
\nwith the provisions of this Act and the rules made thereunder;\n<\/p>\n
6. Liability to tax on inter-State sales.-(1) Subject to the other
\nprovisions contained in this Act, every dealer shall, with effect from such
\ndate as the Central Government may, by notification in the Official
\nGazette, appoint, not being earlier than thirty days from the date of such
\nnotification, be liable to pay tax under this Act on all sales of goods
\nother than electrical energy effected by him in the course of inter-State
\ntrade or commerce during any year on and from the date so notified:\n<\/p>\n
Provided that a dealer shall not be liable to pay tax under this Act on any
\nsale of goods which, in accordance with the provisions of Sub-section (3)
\nof Section 5 is a sale in the course of export of those goods out of the
\nterritory of India.\n<\/p>\n
(1A) A dealer shall be liable to pay tax under this Act on a sale of any
\ngoods effected by him in the course of inter-State trade or commerce
\nnotwithstanding that no tax would have been leviable (whether on the seller
\nor the purchaser) under the sales tax law of the appropriate State if that
\nsale had taken place inside that State.\n<\/p>\n
(2) Notwithstanding anything contained in Sub-section (1) or Sub-section
\n(1A), where a sale of any goods in the course of inter-State trade or
\ncommerce has either occasioned the movement of such goods form one State to
\nanother or has been effected by a transfer of documents of title to such
\ngoods during their movement from one State to another, any subsequent sale
\nduring such movement effected by a transfer of documents of title to such
\ngoods,–\n<\/p>\n
(a) to the Government, or<\/p>\n
(b) to a registered dealer other than the Government, if the goods are of
\nthe description referred to in Sub-section (3) of Section 8, shall be
\nexempt from tax under this Act.\n<\/p>\n
6A. Burden of proof, etc., in case of transfer of goods claimed otherwise
\nthan by way of sale. – (1) Where any dealer claims that he is not liable to
\npay tax under this Act, in respect of any goods, on the ground that the
\nmovement of such goods from one State of another was occasioned by reason
\nof transfer of such goods by him to any other place of his business or to
\nhis agent or principal, as the case may be, and not by reason of sale, the
\nburden of proving that the movement of those goods was so occasioned shall
\nbe on that dealer and for this purpose he may furnish to the assessing
\nauthority, within the prescribed time or within such further time as that
\nauthority may, for sufficient cause, permit, a declaration, duly filled and
\nsigned by the principal officer of the other place of business, or his
\nagent or principal, as the case may be, containing the prescribed
\nparticulars in the prescribed form obtained from the prescribed authority,
\nalong with the evidence of dispatch of such goods.\n<\/p>\n
(2) If the assessing authority is satisfied after making such inquiry as he
\nmay deem necessary that the particulars contained in the declaration
\nfurnished by a dealer under Sub-section (1) are true he may, at the time
\nof, or at any time before, the assessment of the tax payable by the dealer
\nunder this Act, make an order to that effect and thereupon the movement of
\ngoods to which the declaration relates shall be deemed for the purpose of
\nthis Act to have been occasioned otherwise than as a result of sale.\n<\/p>\n
Explanation.–In this section, “assessing authority”, in relation to
\ndealer, means the authority for the time being competent to assess the tax
\npayable by the dealer under this Act. ”\n<\/p>\n
33. It may be noticed that by reason of Section 151 by Act No. 20 of 2002
\nthe following has been added in Sub-section (1) of Section 6A after the
\nwords “dispatch of such goods”:\n<\/p>\n
“and if the dealer fails to furnish such declaration, then, the movement of
\nsuch goods shall be deemed for all purposes of this Act to have been
\noccasioned as a result of sale.”\n<\/p>\n
Section 9 of the said Act reads as under:\n<\/p>\n
“9. Levy and collection of tax and penalties.–(1) The tax payable by any
\ndealer under this Act on sales of goods effected by him in the course of
\ninter-State trade or commerce, whether such sales fall within Clause (a) or
\nClause (b) of Section 3, shall be levied by the Government of India and the
\ntax so levied shall be collected by that Government in accordance with the
\nprovision of Sub-section (2), in the State from which the movement of the
\ngoods commenced:\n<\/p>\n
Provided that, in the case of a sale of goods during their movement from
\none State to another, being a sale subsequent to the first sale in respect
\nof the same goods and being also a sale which does not fall within Sub-
\nsection (2) of Section 6, the tax shall be levied and collected–\n<\/p>\n
(a) where such subsequent sale has been effected by a registered dealer, in
\nthe State from which the registered dealer obtained or, as the case may be,
\ncould have obtained, the form prescribed for the purposes of Clause (a) of
\nSub-section (4) of Section 8 in connection with the purchase of such goods;
\nand<\/p>\n
(b) where such subsequent sale has been effected by an unregistered dealer
\nin the State from which such subsequent sale has been effected.]<\/p>\n
(2) Subject to the other provisions of this Act and the rules made
\nthereunder, the authorities for the time being empowered to assess, re-
\nassess, collect and enforce payment of any tax under the general sales tax
\nlaw of the appropriate State shall, on behalf of the Government of India,
\nassess re-assess, collect and enforce payment of tax, including any
\ninterest or penalty, payable by a dealer under this Act as if the tax or
\ninterest or penalty payable by such a dealer under this Act is a tax or
\ninterest or penalty payable under the general sales tax law of the State;
\nand for this purpose they may exercise all or any of the powers they have
\nunder the general sales tax law of the State; and the provisions of such
\nlaw, including provisions relating to returns. provisional assessment,
\nadvance payment of tax, registration of the transferee of any business,
\nimposition of the tax liability of a person carrying on business on the
\ntransferee of or successor to, such business, transfer of liability of any
\nfirm of Hindu undivided family to pay tax in the event of the dissolution
\nof such firm or partition of such family, recovery of tax from third
\nparties, appeals, reviews, revisions, references, refunds, rebates,
\npenalties, charging or payment of interest, compounding of offences and
\ntreatment of documents furnished by a dealer as confidential, shall apply
\naccordingly.\n<\/p>\n
34. Form ‘F’ which is relevant for the purpose of the case reads thus :\n<\/p>\n
“ORIGINAL<\/p>\n
THE CENTRAL SALES TAX (REGISTRATION AND TURNOVER) RULES, 1957<\/p>\n
FORM F<\/p>\n
[Form of declaration to be issued by the transferee]<\/p>\n
[See Rule 12(5)]<\/p>\n
Serial No……………………………..\n<\/p>\n
Name of the issuing State …………….\n<\/p>\n
Office of issue………………………\n<\/p>\n
Date of issue………………………..\n<\/p>\n
Name and address of the person to whom issued along with his Registration
\nCertificate No………………………………… Date from which
\nregistration is valid………………………………\n<\/p>\n
Seal of Issuing<\/p>\n
Authority<\/p>\n
To……………………………(Transferor) Registration Certificate
\nNo. of the Transferor……………………. Certified that the goods
\ntransferred to me\/us as per details below have been received and duly
\naccount for.\n<\/p>\n
Description of the goods sent. ………………… Quantity or
\nweight………………………….. Value of the goods
\n………………………. Number and date of invoice [or challan or any
\nother documents under which goods were sent.] Name of Railway Steamer or
\nFerry Station or Air Port or Post Office or Road Transport Company’s Office
\nfrom where the goods were dispatched………………………….. No.
\nand Date of Railway Receipt or Postal Receipt or Goods Receipt with trip
\nsheet of lorry or any other documents indicating the means of transport.
\n……………\n<\/p>\n
Date on which delivery was taken by the transferee…………\n<\/p>\n
The above statements are true to the best of my knowledge and belief.\n<\/p>\n
(Signature)<\/p>\n
(Name of the person signing the declaration)<\/p>\n
*(Status of the person signing the declaration in relation to the
\ntransferee)<\/p>\n
*(Status of the person signing the declaration in relation to the
\ntransferor)<\/p>\n
Date……….\n<\/p>\n
*Strike out whichever is not applicable (Note – To be furnished to the
\nassessing authority in accordance with the rules framed under Section 13(4)\n<\/p>\n
(e).)”\n<\/p>\n
35. Having noticed the relevant provisions of the statute, we may notice
\nthe following constitutional provisions:\n<\/p>\n
“245. Extent of laws made by Parliament and by the Legislatures of States.\n<\/p>\n
— (1)<\/p>\n
Subject to the provisions of this Constitution, Parliament may make laws
\nfor the whole or any part of the territory of India, and the Legislature of
\na State may make laws for the whole or any part of the State.\n<\/p>\n
(2) No law made by Parliament shall be deemed to be invalid on the ground
\nthat it would have extra-territorial operation<\/p>\n
268. Duties levied by the Union but States. — (1) Such stamp duties and
\nsuch duties of excise on medicinal and toilet preparations as are mentioned
\nin the Union List shall be levied by the Government of India but shall be
\ncollected–\n<\/p>\n
(a) in the case where such duties are leviable within any Union territory,
\nby the Government of India, and<\/p>\n
(b) in other cases, by the States within which such duties are respectively
\nleviable.\n<\/p>\n
(2) The proceeds in any financial year of any such duty leviable within any
\nState shall not form part of the Consolidated Fund of India, but shall be
\nassigned to that State.\n<\/p>\n
269. Taxes levied and collected by the Union but assigned to the
\nStates.-(1)<\/p>\n
Taxes on the sale or purchase of goods and taxes on the consignment of
\ngoods shall be levied and collected by the Government of India but shall be
\nassigned and shall be deemed to have been assigned to the States on or
\nafter the 1st day of April, 1996 in the manner provided in Clause (2).\n<\/p>\n
Explanation.–For the purposes of this clause,-\n<\/p>\n
(a) the expression “taxes on the sale or purchase of goods” shall mean
\ntaxes on sale or purchase of goods other than newspapers, where such sale
\nor purchase takes place in the course of inter-State trade or commerce;\n<\/p>\n
(b) the expression “taxes on the consignment of goods” shall mean taxes on
\nthe consignment of goods (whether the consignment is to the person making
\nit or to any other person), where such consignment takes place in the
\ncourse of inter-State trade or commerce.\n<\/p>\n
(2) The net proceeds in any financial year of any such tax, except in so
\nfar as those proceeds represent proceeds attributable to Union territories,
\nshall not form part of the Consolidated Fund of India, but shall be
\nassigned to the States within which that tax is leviable in that year, and
\nshall be distributed among those States in accordance with such principles
\nof distribution as may be formulated by Parliament by law.\n<\/p>\n
(3) Parliament may by law formulate principles for determining when a sale
\nor purchase of, or consignment of, goods takes place in the course of
\ninter-State trade or commerce.”\n<\/p>\n
36. Article 286 as it stood prior to 6th Amendment Act, 1956 reads thus:\n<\/p>\n
“286. Restrictions as to imposition of tax on the sate or purchase of
\ngoods. —\n<\/p>\n
(1) No law of a State shall impose, or authorise imposition of a tax on the
\nsale or purchase of goods where such sale or purchase takes place —\n<\/p>\n
(a) outside the State; or<\/p>\n
(b) in the course of import of goods into, or export of goods out of, the
\nterritory of India.\n<\/p>\n
Explanation: For the purposes of Sub-clause (a) a sale or purchase shall be
\ndeemed to have taken place in the State in which the goods have actually
\nbeen delivered as a direct result of such sale or purchase for the purpose
\nof consumption in that State, notwithstanding the fact that under the
\ngeneral law relating to sale of goods the property in the goods has by
\nreason of such sale or purchase passed in another State.\n<\/p>\n
(2) Except in so far as Parliament may by law otherwise provide, no law of
\na State shall impose, or authorize the imposition of, a tax on sale or
\npurchase of any goods where such sale or purchase takes place in the course
\nof inter-State trade or commerce:\n<\/p>\n
Provided that the President may by order direct that any tax on the sale or
\npurchase of goods which was being lawfully levied by the Government of any
\nState immediately before the commencement of this Constitution shall,
\nnotwithstanding that the imposition of such tax is contrary to the
\nprovisions of this clause continue to be levied until thirty first day of
\nMarch, 1951.\n<\/p>\n
(3) No law made by the Legislature of a State imposing, or authorizing the
\nimposition of a tax on the sale or purchase of any such goods as have been
\ndeclared by Parliament by law to be essential for life of the community
\nshall have effect unless it has been reserved for the consideration of the
\nPresident and has received his assent.”\n<\/p>\n
37. Paragraph 16 of Second Report of the Law Commission of India states:\n<\/p>\n
“16. The question whether on the analogy of the principles adopted in
\nconnection with sales or purchase in the source of import or export, a sale
\neffected by the transfer of documents during the movement of goods from one
\nState to another should be regarded as an inter-State sale or purchase has
\nreceived our careful consideration. We are of the view that such sales or
\npurchases should be regarded as inter-State transactions. It was suggested
\nthat if the rate of inter-State tax happened to be lower than the rate of
\ntax levied by the State on intra-State transaction the adoption of this
\nprinciple might lead to attempts by dealers to evade the higher tax of the
\nState by giving intra-State transactions the appearance of inter-State
\ntransactions by the creation of fictitious records showing the movement of
\nthe goods from one State into another. We are not inclined to attach much
\nimportance to this suggestion as in any case the sale or purchase will not
\nescape taxation altogether and it is unlikely that dealers would resort to
\nsuch attempts in order to save the difference between the inter-State and
\nthe intra-State tax. Moreover, if this principle is not applied
\nconsiderable administrative and other difficulties will arise. We are,
\ntherefore, of the view that sales and purchases effected by a transfer of
\ndocuments during the movements of goods from one State to another should be
\nregarded as inter-State transactions.”\n<\/p>\n
38. Thereafter the following Bill was introduced pursuant thereto:\n<\/p>\n
“In Clause 2, it is proposed to add a new entry 92A in the Union List
\nplacing taxes on inter-State sales and purchases within the exclusive
\nlegislative and executive power of the Union, and to make entry 54 of the
\nState List “subject to the provisions” of this new entry.\n<\/p>\n
In Clause 3, it is proposed to add these taxes to the list given in Clause
\n(1) of Article 269, so that, although they will be levied and collected in
\naccordance with an Act of Parliament, they will not form part of the
\nConsolidated Fund of India, but will accrue to the States themselves in
\naccordance with such principles of distribution as may be formulated by
\nParliament by law. A further provision is proposed in Article 269 expressly
\nempowering Parliament to formulate by law principles for determining when a
\nsale or purchase of goods takes place in the course of inter-State trade or
\ncommerce.\n<\/p>\n
It is proposed in Clause 4 to omit from Clause (1) of Article 286 the
\nexplanation which has given rise to a great deal of legal controversy and
\npractical difficulty. In view of the centralization of inter-State sales
\ntax proposed in Clause 2 of this Bill, Clause (2) of Article 286 in its
\npresent form will cease to be appropriate. In its place it is proposed to
\ninsert a provision empowering Parliament to formulate principles for
\ndetermining when a sale or purchase of goods takes place (a) outside a
\nState, or (b) in the course of import of the goods into the territory of
\nIndia, or (c) in the course of export of the goods out of the territory of
\nIndia.\n<\/p>\n
It is further proposed to replace Clause (3) of Article 286 by a new clause
\non the lines recommended by the Taxation Enquiry Commission. Under this
\nrevised clause Parliament will have the power to declare by law the goods
\nwhich are of special importance in inter-State trade or commerce and also
\nto specify the restrictions and conditions to which any State law (whether
\nmade before or after the Parliamentary law) will be subject in regard to
\nthe system of levy, rates and other incidents of the tax on the sales or
\npurchase of those goods.”\n<\/p>\n
39. Pursuant to or in furtherance of the Report of the Law Commission of
\nIndia, Article 286 was amended. Article 286(3) now reads as under:\n<\/p>\n
“(3) Any law of a State shall, in so far as it imposes, or authorises the
\nimposition of,–\n<\/p>\n
(a) a tax on the sale or purchase of goods declared by Parliament by law to
\nbe of special importance in inter-State trade or commerce; or<\/p>\n
(b) a tax on the sale or purchase of goods, being a tax of the nature
\nreferred to in Sub-clause (b), Sub-clause (c) or Sub-clause (d) of Clause
\n(29A) of Article 366, be subject to such restrictions and conditions in
\nregard to the system of levy, rates and other incidents of the tax as
\nParliament may by law specify.”\n<\/p>\n
40. The history of legislation as also constitutional amendments in
\nrelation to inter-State movement of goods has been noticed in State of A.P.
\netc. v. National Thermal Power Corporation Ltd. and Others etc.  : [2002]
\n3SCR278 and as such it may not be necessary to reiterate the same once over
\nagain.\n<\/p>\n
SECTION 6A OF THE CENTRAL ACT:\n<\/p>\n
41. Prior to amendment of Section 6A of the Central Act, filing of Form F
\nwas optional. The dealer was, thus, entitled either to file such form or
\nnot to file the same. Only because such form is not filed, the same would
\nnot mean that the dealer was prohibited from raising a plea that no stock
\nof transfer from his Head Office to Regional Offices or Regional Sales
\nOffices has taken place. It was entitled to plead that by reason of such
\ntransactions which are intra-organisation, sale was not occasioned by
\nmovement of goods. The question which was required to be posed and answered
\nby the assessing authority was, thus, required to be confined only to the
\nfact as to whether any sale has (SIC) by movement of goods or not. In other
\nwords, an (SIC) to the concept of inter-State sale invoking the provisions
\nof the Central Act would be when such movement of goods was by way of
\ntransfer of stock in terms whereof no tax under the Central Act was
\npayable. Indisputably determination of such a question at the hands of the
\nassessing authority was required for arriving at a finding of fact as to
\nwhether the Central Sales Tax or the local sales tax would become payable.
\nThe States, where manufacturing of goods takes place in case involving such
\nnature of transaction, presumably would like to invoke the provisions of
\nthe Central Sales Tax as in terms of Article 270 of the Constitution of
\nIndia despite the fact that the Central Sales Tax is payable to the Central
\nGovernment, the amount is invariably passed on to the State concerned. On
\nthe other hand, the purchaser when it is a public sector undertaking, would
\nlike to see that the purchase and sale takes place within the State so as
\nto entitle the concerned State to collect the local sales tax, a rate
\ntherefore would normally be higher. There, thus, exists conflict in
\ninterest of the States particularly having regard to the financial crunches
\nfaced by them.\n<\/p>\n
42. Having regard to the Statement of Objects and Reasons of the Central
\nSales Tax Act vis-a-vis the recommendations made by the Law Commission, as
\nreferred to hereinbefore, it would appear that the Parliament with a view
\nto bring in expediency in such a matter so that the dispute can be
\ndetermined as expeditiously as possible amended Section 6A. Section 6 of
\nthe Act provides for liability to tax on inter-State sales in terms whereof
\nevery dealer is liable to pay tax thereunder on sales effected by him in
\nthe course of inter-State trade or commerce subject to the exception
\ncontained in the proviso appended thereto. Such tax would be leviable
\nnotwithstanding the fact that no tax is leviable either on seller or the
\npurchaser under the State tax laws of the appropriate State if that sale
\nhad taken place inside the State.\n<\/p>\n
43. The liability to tax on inter-State sale as contained in Section 6 is
\nexpressly made subject to the other provisions contained in the Act. Sub-
\nSection (2) of Section 9, on the other hand, which is a procedural
\nprovision starts with the words “subject to the other provisions of this
\nAct and the rules made thereunder”. Section 6A provides for exception as
\nregard the burden of proof in the event a claim is made that transfer of
\ngoods had taken place otherwise than by way of sale. Indisputably, the
\nburden would be on the dealer to show that the movement of goods had
\noccasioned not by reason of any transaction involving sale of goods but by
\nreason of transfer of such goods to any other place of his business or to
\nhis agent or principal, as the case may be. For the purpose of discharge of
\nsuch burden of proof, the dealer is required to furnish to the assessing
\nauthority within the prescribed time a declaration duly filled and signed
\nby the principal officer of the other place of business or his agent or
\nprincipal. Such declaration would contain the prescribed particulars in the
\nprescribed form obtained from the prescribed authority. Along with such
\ndeclaration, the dealer is required to furnish the evidence of such
\ndispatch of goods by reason of Act 20 of 2002. In the event, if it fails to
\nfurnish such declaration, by reason of legal fiction, such movement of
\ngoods would be deemed for all purposes of the said Act to have occasioned
\nas a result of sale. Such declaration indisputably is to be filed in Form
\nF. The said form is to be filled in triplicate. The prescribed authority of
\nthe transferee State supplies the said form. The original of the said form
\nis to be filed with the transferor State and the duplicate thereof is to be
\nfiled before the authorities of the transferee State whereas the
\ncounterfoil is to be preserved by the person where the agent or principal
\nof the place of business of the company is situated.\n<\/p>\n
44. When the dealer furnishes the original of Form F to its assessing
\nauthority, an enquiry is required to be held. Such enquiry is held by the
\nassessing authority himself. He may pass an order on such declaration
\nbefore the assessment or along with the assessment. Once an order in terms
\nof Sub-Section 2 of Section 6A of Central Act is passed, the transactions
\ninvolved therein would go out of the purview of the Central Act. In other
\nwords, in relation to such transactions, a finding is arrived at that they
\nare not subjected to the provisions of the Central Sales Tax. It is not in
\ndispute thereunder no appeal is provided there against.\n<\/p>\n
45. In Chunni Lal Parshadi Lal v. Commissioner of Sales Tax. UP<\/a>  : [1986]
\n1SCR891 :\n<\/p>\n
“23. It means that a sale of any of the goods specified in Sub-section (1)
\nto a registered dealer who has purchased them or to any unregistered
\ndealer, shall for the purpose of this section, be deemed to be a sale to
\nthe consumer unless the purchasing dealer purchases the said goods for
\nresale in the same condition. It merely strengthens the provisions of Sub-
\nsection (2) of Section 3-AA i.e. unless the dealer proves otherwise, every
\nsale shall, for the purpose of Sub-section (1), be presumed to be to a
\nconsumer. The combined effect of Sub-sections (1), (2) and (3), of Section
\n3-AA of the Act is that tax would be payable if the goods in question i.e.
\ncotton yarn, in this case, are sold to a dealer for consumption. Unless the
\ndealer proves otherwise every sale by a dealer shall for the purpose of
\nSub-section (1) be presumed to be a sale to a consumer. A sale of any of
\nthe goods mentioned in Sub-section (1) to a registered dealer who does not
\npurchase them for resale in the same condition, without processing or sale
\nto unregistered dealer shall be deemed to be a sale to the consumer.
\nTherefore, a registered dealer has to prove that a sale to another
\nregistered dealer or an unregistered dealer is not for consumption. In
\norder to facilitate the working of the Act, by Rule 12-A a method of
\nproving has been provided that the sale is not a sale to the consumer. The
\nreading of the rule along with relevant provisions of the Act leads to the
\nconclusion that Rule 12-A method, -furnishing of certificate in the form
\nand with the particulars – is one of- the methods of proving that sale by a
\nregistered dealer is not for consumption. Neither the rule nor the
\nprovision of the section suggests that this is the only method. If a dealer
\ncan prove by any other way than the way contemplated by Rule 12-A then he
\nis not so precluded. For the rule to say otherwise would be exceeding the
\nprovision of the section. The purpose for the making of the rule would
\nhowever, be frustrated if after the dealer proves in the manner indicated
\nin Rule 12-A he has to prove again how the purchasing dealer has dealt with
\nthe goods after he obtains the certificate from a registered dealer. That
\nwould make the working of the Act and Rule unworkable.\n<\/p>\n
24. There is no dispute that in this case certificates as mentioned in Rule
\n12-A were furnished.\n<\/p>\n
25. The questions involved in this case are whether by furnishing
\ncertificate in Form III-A and the details of such certificate given in Form
\nIV, the selling dealer got exemption and Rule 12-A created an irrebuttable
\npresumption i.e. that no further evidence is required in this matter to
\nprove that the goods were sold to a dealer for resale in the same condition
\nand not to be consumed by the purchasing dealer.”\n<\/p>\n
46. By reason of Sub-Section (2) of Section 6A, a legal fiction has been
\ncreated for the purpose of the said Act to the effect that transaction has
\noccasioned otherwise than as a result of sale.\n<\/p>\n
47. On an analysis of the aforementioned provisions, therefore, the
\nfollowing propositions of law emerge:\n<\/p>\n
(i) The initial burden of proof is on the dealer to show that the movement
\nhas occasioned by reason of transfer of such goods which is otherwise than
\nby reason of sale. The assessee may file a declaration. On a declaration so
\nfiled an inquiry is to be made by the assessing authority for the purpose
\nof passing an order on arriving at a satisfaction that movement of goods
\nhas occasioned otherwise than as a result of sale.\n<\/p>\n
(ii) Whenever such an order is passed, a legal fiction is created.\n<\/p>\n
48. Legal fiction, as is well-known, must be given its full effect.\n<\/p>\n
49. In the rules of evidence, there exist several presumptions. These
\npresumptions may be rebuttable or irrebuttable. Irrebuttable presumptions
\nare referred to as conclusive presumptions as they stand as conclusive
\nproof of certain facts and are open to challenge only on very meagre
\ngrounds. Under the Indian Evidence Act, Sections 41, 112 and 133 deal with
\nconclusive presumptions. Even in other enactments, like the Indian
\nCompanies Act, 1956, such provisions exist.\n<\/p>\n
50. In the case at hand it is necessary to determine whether Section 6A of
\nthe Central Sales Tax Act sets up a conclusive presumption.\n<\/p>\n
“Presumptions may be looked upon as the bats of law, flitting in the
\ntwilight, but disappearing in the sunshine of facts.”\n<\/p>\n
51. This metaphor used by Cochran, J. in Stumpf v. Mantgomery (1924) 101
\nOKL 256. pithily states the law.\n<\/p>\n
52. However, the rule of conclusive proof stands on a different footing.
\nOnce it is held, as we do, that Section 6A of the Central Act provides for
\na conclusive proof, except on a limited ground, reopening of assessment
\nwould not be permissible.\n<\/p>\n
RULE OF CONCLUSIVE PRESUMPTION : SOME CASE LAWS:\n<\/p>\n
53. In several cases validity of rules of conclusive presumptions have been
\nupheld.\n<\/p>\n
54. However, in Ashok Leyland (supra), it was held:\n<\/p>\n
“Section 6A does not create a conclusive presumption and that an order
\naccepting Form F, whether passed during the assessment or at any point
\nearlier thereto, is ultimately a part and parcel of the order of
\nassessment. Its amenity to power of re-opening and revision depends upon
\nthe provisions of the concerned State sales tax enactment by virtue of
\nSection 9(2).”\n<\/p>\n
55. We do not think that the aforesaid view is correct.\n<\/p>\n
56. In Re Eric Holmes Ltd. (1965) 2 All ER 333, it was held,<\/p>\n
“that the giving of the certificate by the Registrar is conclusive that the
\ndocument creating the charge was properly registered, even if in fact it
\nwas not properly registered.”\n<\/p>\n
57. A discussion may also ensue as to whether a conclusive presumption is
\none of substantive or of procedural law. This was discussed in Izhar Ahmad
\nKhan (supra) and was held to be part of the latter and not the former as it
\nfound place in the Indian Evidence Act (among other reasons). The decision
\nruns as follows:\n<\/p>\n
“It was not correct to say that Rule 3 of Schedule III of the Citizenship
\nRules, 1956, which made it obligatory on the authority to infer the
\nacquisition of foreign citizenship from the fact of obtaining a passport
\nfrom a foreign country was not a rule of evidence but a rule of substantive
\nlaw.\n<\/p>\n
Like the rules of rebuttable presumption, which was undoubtedly a rule of
\nevidence. The function of an irrebuttable presumption was also to help the
\njudicial mind in appreciating the existence of facts with this difference
\nthat while the former was open to rebuttal, the latter was placed beyond
\nrebuttal. So considered a rule of irrebuttable presumption could not be
\nsaid to fall to fall outside the law of. evidence.\n<\/p>\n
That such a rule might in some cases lead to hardship and injustice was not
\na relevant consideration in judging its constitutional validity.\n<\/p>\n
The real test whether a rule of irrebuttable presumption was one of
\nevidence was inherent relevancy. If the fact from the proof of which the
\npresumption was required to be drawn was inherently relevant in proving it,
\nthe rule was one of evidence, no matter whether the presumption prescribed
\nwas rebuttable or irrebuttable.\n<\/p>\n
The expression ‘rules of evidence’ in Section 9(2) must be construed in the
\nlight of its legislative history. Ever since the passing of the Evidence
\nAct a conclusive presumption has been a part of the law of evidence. It is
\nwell settled that the scope of power to legislate on a topic had to be
\ndetermined by the denotation of that topic obtaining in legislative
\npractice.”\n<\/p>\n
58. However, in the minority opinion it was observed,<\/p>\n
“A rule of conclusive presumption made with a view to affect specified
\nsubstantive right was a rule of substantive law and did not cease to be so
\nbecause it rested on a fact which was relevant to it. The test was not one
\nof relevancy but whether it was intended to affect a specified substantive
\nright or provide a method of proof.”\n<\/p>\n
59. The said principle has been reiterated by this Court in M. Venugopal v.
\nDivisional Manager, Life Insurance Corporation of India, Machilipatnam,
\nA.P. and Another<\/a> : (1994)ILLJ597SC stating:\n<\/p>\n
“In the case at hand, a statutory authority that had jurisdiction to pass
\nsuch an order has passed the order. In addition there is no provision for
\nappeal, which goes to show that this is part of the substantive law and not
\nprocedural law. This order is conclusive for all purposes, as the above two
\nstated elements clearly go out to show. No appeal has been provided for
\ndepicting the will of the legislature to make the order of such authority
\nfinal.”\n<\/p>\n
60. In The Municipal Board, Hapur v. Raghuvendra Kripal and Ors.<\/a>  : [1966]
\n1SCR650 this Court stated:\n<\/p>\n
“…The provision making the notification conclusive evidence of the proper
\nimposition of the tax is conceived in the best interest of compliance of
\nthe provisions of the Boards and not to facilitate their breach. It cannot,
\ntherefore, be said that there is excessive delegation.”\n<\/p>\n
61. In State of Madras v. Radio and Electricals Ltd.<\/a>  : AIR1967SC234 , it
\nhas been held that satisfaction once reached in absence of any provision,
\nreview of such an order is not permissible.\n<\/p>\n
62. In Balabhagas Hulaschand (supra) : [1976]2SCR939 , this Court has given
\nan example.\n<\/p>\n
“Case No. II – A who is a dealer in State X agrees to sell goods to B but
\nhe books the goods from State X to State Y in his own name, and his agent
\nin State Y receives the goods on behalf of A, Thereafter the goods are
\ndelivered to B in State Y and if B accepts them a sale takes place. It will
\nbe seen that in this case the movement of goods is neither in pursuance of
\nthe agreement to sell nor is the movement occasioned by the sale. The
\nseller himself takes the goods to State Y and sells the goods there. This
\nis, therefore, purely an internal sale which takes place in State Y and
\nfalls beyond the purview of Section 3(a) of the Central Sales Tax Act not
\nbeing an inter-State sale.\n<\/p>\n
63. In C.P.K. Trading Co. v. Additional Sales Tax officer, III Circle
\nMattancherry , the law is stated in the following terms:\n<\/p>\n
“…A plain reading of Section 6A(2) of the Central Sales Tax Act points
\nout that in cases where the dealer exercises the option of furnishing the
\ndeclaration (F forms), the only further requirement is that the assessing
\nauthority should be satisfied, after making such enquiry, as he may deem
\nnecessary, that the particulars contained in the declaration furnished by
\nthe dealer are “true”. The scope or frontiers of enquiry, by the assessing
\nauthority under Section 6A(2) of the Central Sales Tax Act is limited to
\nthis extent, namely, to verify whether the particulars contained in the
\ndeclaration (F forms) furnished by the dealer are “true”. It means, the
\nassessing authority can conduct an enquiry to find out whether the
\nparticulars in the declaration furnished are correct, or dependable, or in
\naccord with facts or accurate or genuine. That alone is the scope of the
\nenquiry contemplated by Section 6A(2) of the Act. On the conclusion of such
\nan enquiry, he should record a definite finding, one way or the other. As
\nto what should be the nature of the enquiry, that can be conducted by the
\nassessing authority under Section 6A(2) of the Act, is certainly for him to
\ndecide. It is his duty to verify and satisfy himself that the particulars
\ncontained in the declaration furnished by the dealer are “true”. As a
\nquasi-judicial authority, the assessing authority should act fairly, and
\nreasonably in the matter. During the course of the enquiry, under Section
\n6A(2) of the Act, it is open to him to require the dealer to produce
\nrelevant documents or other papers or materials which are germane or
\nrelevant, to find whether the particulars contained in the declaration (F
\nforms) are “true”. It is not possible to specify the documents or other
\nmaterials or papers that may be required, to be furnished in all situations
\nand in all cases. It depends upon the facts and circumstances of each case.
\nThe power vested in the officer is a wide discretionary power, to find,
\nwhether the particulars contained in the declaration (F forms) are “true”.
\nIt is not possible or practicable to lay down the exact documents or
\nmaterials that may be required in all the cases, by the assessing
\nauthority, to come to a proper and just finding as required by Section
\n6A(2) of the Act.”\n<\/p>\n
64. Thus from the above, we can conclude that the order of an authority
\nunder Section 6A is conclusive for all practical purposes.\n<\/p>\n
LEGAL FICTION :\n<\/p>\n
65. The question that arises is whether a legal fiction can be applied to
\ndetermine whether a particular interstate transaction amounted to an
\ninterstate sale or a mere transfer of stock. Legal fictions have been
\napplied in a number of cases.\n<\/p>\n
66. In Gannon Dunkerley and Co. v. State of Rajasthan,<\/a>  : (1993)1SCC364 ,
\nit was held that, “Sections 3, 4, and 5 (of the Central Sales Tax Act) were
\napplicable to such contracts containing two separate agreements, these
\nprovisions would apply to a contract which, though single and indivisible,
\nby legal fiction introduced by the 46th Amendment has been altered into a
\ncontract which is divisible into one for sale of goods and other for labour
\nand services. Such a deemed sale has all the incidents of a sale of goods
\ninvolved in the execution of a works contract where the contract is
\ndivisible into one for sale of goods and the other for supply of labour and
\nservices. Sections 14 and 15 of the Central Sales Tax Act would also be
\napplicable to the deemed sales resulting from transfer of property in goods
\ninvolved in the execution of a works contract. The absence of any amendment
\nin the definition of sale contained in Section 2(g) of the Central Sales
\nTax Act, 1956 so as to include transfer of property in goods involved in
\nexecution of a works contract, therefore, does not in any way affect the
\napplicability of Sections 3, 4, and 5 and Sections 14 and 15 of the Central
\nSales Tax to such transfers.\n<\/p>\n
67. In State of Bombay v. Pandurang<\/a>  : 1953CriLJ1049 it was held,<\/p>\n
“When a statute enacts that something shall be deemed to have been done,
\nwhich in fact and truth was not done, the court is entitled and bound to
\nascertain for what purposes and between what persons the statutory fiction
\nis to be resorted to and full effect must be given to the statutory fiction
\nand it should be carried, to its logical conclusion. ”\n<\/p>\n
68. A legal fiction can be utilised in several ways wherein the word
\n‘deemed’ is used. However, the mere use of the word ‘deemed’ is not in
\nitself sufficient to set up a legal fiction as was held in Consolidated
\nCoffee Ltd. v. Coffee Board,<\/a>  : (1995)1SCC312 , stating that, “the word
\n‘deemed’ is used a great deal in modern legislation in different senses and
\nit is not that a deeming provision is every time made for the purposes of
\ncreating a fiction. A deeming provision might be made to include what is
\nobvious or what is uncertain or to impose for the purpose of a statute an
\nartificial construction of a word of phrase that would not otherwise
\nprevail, but in each case it would be a question as to with what object the
\nlegislature has made such a deeming provision.”\n<\/p>\n
69. The Court went further to quote the position taken in St. Aubyn v.
\nAttorney General (1951) 2 All ER 473 wherein Lord Radcliffe observed thus,<\/p>\n
“The word ‘deemed’ is used a great deal in modern legislation. Sometimes it
\nis used to impose for the purposes of a statute an artificial construction
\nof a word or phrase that would not otherwise prevail. Sometimes it is used
\nto put beyond doubt a particular construction that might otherwise be
\nuncertain. Sometimes it is used to give a comprehensive description that
\nincludes what is obvious, what is uncertain and what is, in the ordinary
\nsense impossible.”\n<\/p>\n
70. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.<\/a>  : AIR2003SC511
\nit was stated that the purpose and object of creating a legal fiction in
\nthe statute is well known. But when a legal fiction is created it must be
\ngiven its full effect. It was held in East End Dwellings Co. Ltd. v.
\nFinsbury Borough Council (1951) 2 All ER 587:\n<\/p>\n
“If you are bidden to treat an imaginary state of affairs as real, you must
\nsurely, unless prohibited from doing so, also imagine as real the
\nconsequences and incidents which, if the putative state of affairs had in
\nfact existed, must inevitably have flowed from or acco7mpanied it. One of
\nthese in this case is emancipation from the 1939 level of rents. The
\nstatute says that you must imagine a certain state of affairs; it does not
\nsay that having done so, you must cause or permit your imagination to
\nboggle when it comes to the inevitable corollaries of that state of
\naffairs. ”\n<\/p>\n
[See also ITW Signode India Ltd. v. Collector of Central Excise<\/a> –  :
\n2003ECR783(SC)<\/p>\n
71. These decisions, therefore, show that whenever a legal fiction is
\ncreated by a statute, the same shall be given full effect.\n<\/p>\n
INTERPRETATION OF SECTION 6A OF THE CENTRAL ACT :\n<\/p>\n
72. A statute, as is well-known, must be interpreted having regard to the
\ntext and context thereof. Mischief Rule may also be applied in a given
\ncase.\n<\/p>\n
73. While construing a statute, the object of the Act must be taken into
\nconsideration. (See Killick Nixon Ltd. v. Deputy Commissioner of Income Tax<\/a>
\n: [2002]258ITR627(SC)<\/p>\n
74. Section 6A of the Act although provides for a burden of proof, the same
\nhas to be read in the context of Section 6 of the said Act. Section 6
\nprovides for liability to pay tax on inter-State sales. Any transaction
\nwhich does not fall within the definition of ‘sale’ would not be exigible
\nto tax, the burden whereof would evidently be on the assessee. We have
\nnoticed hereinbefore that whereas prior to the amendment in Sub-section (1)
\nof Section 6A the dealer had ah option of filing a declaration in Form-F;
\nafter such amendment, he does not have such option, insofar as in terms of
\nthe amended provision, if the dealer fails and\/or neglects to file such a
\ndeclaration, the transaction would be deemed to be ah inter-State sale. It
\nis to be noticed that for the aforementioned purpose also, the Parliament
\nadvisedly used the expression ‘deemed’. If the expression ‘deemed’ is
\ninterpreted differently, an incongruity would ensue.\n<\/p>\n
75. In absence of any indication that the Parliament while enacting Sub-
\nsection (2) of Section 6A did not intend to make the deeming provisions to
\nbe a conclusive fact as regard occasion of the transaction having taken
\nplace otherwise than as a result of sale, it would have dealt with the
\nmatter differently.\n<\/p>\n
76. Section 6A(2) of the Act uses the following expressions which are
\nimportant : (1) ‘thereupon’; (2) ‘for the purpose of this Act’; (3) ‘the
\nmovement of goods to which the declaration related shall be deemed for the
\npurpose of this Act to have been occasioned otherwise than as a result of
\nsale’.\n<\/p>\n
77. Each of them must be given its proper meaning.\n<\/p>\n
78. A statute for the purpose of its interpretation must be read in its
\nentirety. It is to be given a purposive construction. Applying Heydon’s
\nrule, it must be held that the amendment was necessitated not only to make
\nthe dealer to file such a declaration imperatively but also to see that
\nsuch movement of goods becomes inter-State sale by raising a legal fiction,
\nas ‘having been occasioned in course of a inter-State sale’. In other
\nwords, if such a declaration is filed and on an inquiry made pursuant to or
\nin furtherance of the particulars furnished are found to be correct by the
\nassessing authority, the result thereof which is evidenced by the
\nexpression ‘thereupon’ shall in view of the legal fiction created would be
\na transaction otherwise than as a result of an inter-State sale.
\nFurthermore, once such a legal fiction is drawn, the same would continue to
\nhave its effect not only while making an order of assessment in terms of
\nthe State Act but also for the purpose of invoking the power of reopening
\nof assessment contained in Section 9(2) of the Central Act as well as
\nSection 16 of the State Act.\n<\/p>\n
[See Indian Handicrafts Emporium and Ors. v. Union of India and Ors.<\/a>  :
\nAIR2003SC3240 , Ameer Trading Corporation Ltd. v. Shapoorji Data Processing
\nLtd.<\/a>  : AIR2004SC355 .\n<\/p>\n
OUR ANALYSIS :\n<\/p>\n
79. In the case at hand it has to be determined whether the sale in
\nquestion is an interstate one. If through the means of a legal fiction it
\nis determined that this is not an interstate sale, then it amounts to a
\ntransfer of stock. This finding is made by a statutory authority who has
\nthe jurisdiction to do so and there is no provision for appeal. Therefore,
\nthe order made by such authority is conclusive in that it cannot be
\nreopened on the basis that there had been a mere error of judgment. It also
\ncannot be re-opened under another statute, for examples, the Sales Tax Act
\nof the State concerned, when the order had been made under the Central Act.
\nSection 9(2) of the Act is subject to the other provisions of the Act which
\nwould include Sub-section (2) of Section 6A of the Act. “Subject to” is an
\nexpression whereby limitation is expressed. The order is conclusive for all
\npurposes. It can only be re-opened on a small set of grounds such as fraud,
\nmisrepresentation, collusion etc.<\/p>\n
80. It is also to be borne in mind that no presumption when movement of
\ngoods has taken place in the course of inter-State sales may be raised in
\nthe case of standard goods but the same is not conclusive. It is only one
\nthe factors which is required to be taken into consideration along with
\nothers. In a case, however, where the purchaser places order on the
\nmanufacturer for manufacturing goods which would be as per his
\nspecifications, a presumption that agreement to sell has been entered into
\nmay be raised.\n<\/p>\n
81. The purport and object of Section 6A of this Act need not detain us for
\nlong as the same has been considered at some details recently in 20th
\nCentury Finance Corporation Ltd. and Anr. v. State of Maharashtra  :
\nAIR2000SC2436 stating:\n<\/p>\n
“While examining the power of State Legislatures under Entry 54 of List II
\nin the earlier part of this judgment, we have noticed that the situs of the
\nsale or purchase is wholly immaterial as regards the inter-State trade or
\ncommerce, as held in Bengal Immunity Co. Ltd. case : [1955]2SCR603 .
\nFurther, the State Legislature cannot by law, treat sales outside the State
\nand sales in the course of import as “sales within the State” by fixing the
\nsitus of sales within its State in the definition of sale, as it is within
\nthe exclusive domain of the appropriate legislature, i.e., Parliament to
\nfix the location of sale by creating legal fiction or otherwise.”\n<\/p>\n
82. In Mahant Dharam Das (supra), it has been held that the object of the
\nAct is to get rid of protracted litigation. The same is also required to be
\nborne in mind while interpreting the relevant provisions of the Central and
\nthe State Acts.\n<\/p>\n
83. There cannot be any doubt or dispute that while defining sale, the
\nsitus of sale can be fixed by the Parliament which having regard to Article
\n286 is within its exclusive domain and in the context of Article 269(3)
\nhaving regard to the following factors:\n<\/p>\n
(i) Place where agreement of sale is concluded;\n<\/p>\n
(ii) Passing of property in the goods;\n<\/p>\n
(iii) Where the parties to the contract reside; and<\/p>\n
(iv) Goods are located or manufactured.\n<\/p>\n
84. Once the situs of sale either by way of legal fiction or otherwise is
\ndetermined, the State Legislature will be denuded of its power to fix
\nanother situs having regard to the fact that the Parliament alone has the
\nexclusive jurisdiction therefore. A sale may have several elements and all
\nof them need not necessarily take place in one State and in that view of
\nthe matter a presumption had to be provided for by a deeming provision as a
\nlogical corollary of the principles laid down by a law of Parliament.\n<\/p>\n
85. It has not been disputed before us that all the requisite particulars
\nare to be stated in Form F. Once a determination is made that such
\nstatements are correct, the curtain is drawn keeping in view the expression
\n“thereupon”. The said word is of great significance and must be given its
\nfull effect.\n<\/p>\n
86. In Words and Phrases, Permanent Edition, Volume 41A, ‘thereupon’ is
\ndefined as:\n<\/p>\n
“Thereupon” has at least two meanings and may mean either immediately or
\nwithout delay or lapse of time. It has been defined as meaning upon this or
\nthat and is used for the purpose of referring to a cause or, condition
\nprecedent. It is also frequently used to denote a following or consequence
\nof preceding events and when considered in statutory interpretation it is
\noften construed to refer to a succession of events in the order or sequence
\nof their performance rather than as an adverb of time. State ex rel.
\nWarnick v. Wilson, 178 P. 2d 277, 282, 162 Kan. 507.”\n<\/p>\n
87. The expression “For the purpose of this Act”, unless the context
\notherwise requires would mean “all the purposes” thereof.\n<\/p>\n
88. In H.L. Sud, Income Tax Officer, Companies Circle 1 (1), Bombay v. Tata
\nEngineering and Locomotive Co. Ltd.<\/a>  : [1969]71ITR457(SC) , this Court
\nheld:\n<\/p>\n
“The expression “for all purposes”, used in Section 43 only indicates that
\nwhen an appointment is made for a particular assessment year it is stood
\nfor all purposes as far as that assessment is concerned i.e., for all
\npurposes for imposing tax liability, determining the quantum of the
\nliability and for recovering it. The expression does not extend the
\nliability to any other assessment excepting the liability for the
\nassessment year for which the appointment is made. ”\n<\/p>\n
89. The expression “for the purpose of the said Act” must also be given
\neffect to. The same would ordinarily mean “for the purpose of all the
\nprovisions of the said Act”.\n<\/p>\n
90. In M.K. Kochu Devassy v. State of Kerala<\/a> etc.  : 1979CriLJ147 , it is
\nstated:\n<\/p>\n
13. We find ourselves wholly unable to accept any of the contentions. The
\nterms of Section 2 of the 1947 Act as substituted by Section 3 of the
\nKerala Act are absolutely clear and unambiguous and when they lay down that
\nthe expression “public servant” shall have a particular meaning for the
\npurposes of the Act, that meaning must be given to the expression wherever
\nit occurs in the Act. “For the purposes of the Act” surely means for the
\npurposes of all and not only some of the provisions of the Act. If the
\nintention was to limit the applicability of the definition of the
\nexpression “public servant” as contended, the language sed would not have
\nbeen “for the purposes of the Act” but something like “for the purposes of
\nthe Act insofar as they relate to the offences under Sections 161 to 165 of
\nthe Indian Penal Code”.\n<\/p>\n
91. In Shrisht Dhawan (supra), the law is stated in the following terms:\n<\/p>\n
“Thus a tenant cannot wait for the entire period of lease and then raise
\nobjection to execution on fraud or collusion unless he is able to establish
\nthat it was not known to him and he came to know of it, for the first time
\nonly at the time of execution. In other words the Controller shall not be
\njustified in entertaining an objection in execution unless the tenant
\nestablishes, affirmatively, that he was not aware of fraud before expiry of
\nthe period of lease. To the following extent, therefore, the law on
\nprocedural aspect should be taken as settled.\n<\/p>\n
(1) Any objection to the validity of sanction should be raised prior to,
\nexpiry of the lease.\n<\/p>\n
(2) The objection should be made immediately on becoming aware of fraud,
\ncollusion etc.<\/p>\n
(3) A tenant may be permitted to raise objection after expiry of lease in
\nexceptional circumstances only.\n<\/p>\n
(4) Burden to prove fraud or collusion is on the person alleging it.”\n<\/p>\n
92. It was further observed :\n<\/p>\n
“…An action is mindless when it is thoughtless or without any care or
\ncaution. In law it is passing of an order without any regard to the
\nprovision of law. If the section requires the authority to pass an order on
\ninquiry or on being satisfied of existence or non-existence of a fact then
\nthe duty cast is higher and an order which is passed without due regard to
\nduty to investigate then the order may be mindless…”\n<\/p>\n
93. Furthermore, the expression ‘subject to’ must be given effect to.\n<\/p>\n
94. In Black’s Law Dictionary, Fifth Edition at page 1278 the expression
\n‘Subject to” has been defined as under :\n<\/p>\n
“Liable, subordinate, subservient, inferior, obedient to; governed or
\naffected by; provided that; provided, answerable for. Homan v. Employers
\nReinsurance Corporation, 345 Mo. 650, 136 S.W. 2d 289, 302”\n<\/p>\n
95. The word “Determination” must also be given its full effect to, which
\npre-supposes application of mind and expression of the conclusion. It
\nconnotes the official determination and not a mere opinion of finding.\n<\/p>\n
96. In Law Lexicon by P. Ramanatha Aiyar, Second Edition, it is stated:\n<\/p>\n
“Determination or order. The expression “determination” signifies an
\neffective expression of opinion which ends a controversy or a dispute by
\nsome authority to whom it is submitted under a valid law for disposal. The
\nexpression “order” must have also a similar meaning, except that it need
\nnot operate to end the dispute, Determination or order must be judicial or
\nquasi-judicial. Jaswant Sugar Mills v. Lakshmi Chand,  : (1963)ILLJ524SC .
\n[Constitution of India Article 136]”\n<\/p>\n
97. In Black’s Law Dictionary, 6th Edition, it is stated:\n<\/p>\n
“A “determination” is a “final judgment” for purposes of appeal when the
\ntrial court has completed its adjudication of the rights of the parties in
\nthe action. Thomas Van Dyken Joint Venture v. Van Dyken, 90 Wis. 236, 279
\nN.W. 2d 459, 463″\n<\/p>\n
98. It is not in dispute that the principles for determination as to what
\nwould cause a inter-state sale or intra-state sale is to be laid down in
\nterms of the provisions of a Parliamentary Act having regard to the express
\nprovisions contained, in Clause (3) of Article 269 and Clause (3) of
\nArticle 286 of the Constitution. What principles can be deduced by reason
\nof such a legal fiction has been stated by this Court in Consolidated
\nCoffee Ltd. (supra) in the following terms:\n<\/p>\n
“A ‘principle’ means a general guiding rule, and does not include specific
\ndirections, which vary according to the subject-matter per Shearman, J., in
\nM’Creagh v. Frearson (1922 WN 37.\n<\/p>\n
Similarly in WORDS AND PHRASES, Permanent Edition, Vol. 33-A at page 327 it
\nis explained that “principle means a general law or rule adopted or
\nprofessed as a guide to action. “In other words, as opposed to any specific
\ndirection governing any particular or specific instance, transaction or
\nsituation a principle, would be a guiding rule applicable generally to
\ncases or class of cases. Looked at from this angle it will be clear that
\nSub-section (3) of Section 5 formulates a principle inasmuch as it lays
\ndown a general guiding rule applicable to all penultimate sales that
\nsatisfy the two conditions specified therein and not any specific direction
\ngoverning any particular or specific transaction of a penultimate sale. In
\nother words the content of the provision shows that it lays down a
\nprinciple.”\n<\/p>\n
99. It was opined :\n<\/p>\n
“Two things become clear from this Statement; first, Mohd. Serajuddin
\ndecision : AIR1975SC1564 is specifically referred to as necessitating the
\namendment and secondly, penultimate sales made by small and medium scale
\nmanufacturers to an export canalising agency or private export house to
\nenable the latter to export those goods in compliance with existing
\ncontracts or orders are regarded as inextricably connected with the export
\nof the goods and hence, earmarked for conferal of the benefit of the
\nexemption. But here again, ‘existing contract’ with whom is not clarified.
\nIn other words, on this crucial point the Statement is silent and does not
\nthrow light on whether the existing contract should be with a foreign buyer
\nor will include any agreement with a local party containing a covenant to
\nexport. Therefore, the question will again depend upon proper construction
\nand as we have said above, in the matter of construction the two aspects as
\ndiscussed earlier show that by necessary implication ‘the agreement’ spoken
\nof by Section 5(3) refers to the agreement with a foreign buyer.”\n<\/p>\n
100. In terms of Clause (3) of Article 269, inter-state sale is contrasted
\nfrom local sale.\n<\/p>\n
101. An order passed by the statutory authority who has jurisdiction
\ntherefore, the same would amount to a part of substantive and not
\nprocedural law. In addition to this there is no provision for appeal. Thus,
\nit is only in the limited cases of fraud, mis-representation etc. that
\nreassessment can be directed and not if there had been a mere error of
\njudgment.\n<\/p>\n
102. If it is not an inter-State sale provided through a legal fiction,
\nthen it amounts to transfer of stock and this is a finding which has been
\narrived at by a statutory authority where for there does not exist any
\nprovision for appeal. Therefore, it cannot be reopened on the premise that
\nthere was a mere error of judgment or change in opinion.\n<\/p>\n
103. Once it is held that such determination of an issue having regard to
\nlegal fiction created in terms of Sub-section (2) of Section 6A is
\nconclusive, it must a fortiorari follow that the same is binding.\n<\/p>\n
104. The particulars required to be furnished in Form F clearly manifest
\nthat the proof required is as to whether the goods were factually
\ntransferred to the assessee himself or his branch office or his agent and
\nnot to any third party. Any other enquiry is beyond the realm of the
\nassessing authority.\n<\/p>\n
105. It is true that this Court in Ashok Leyland (supra) upon consideration
\nof the matter holding that no statutory conclusiveness had been attached by
\nreason of a legal fiction in terms of Sub-section (2) of Section 6A. This
\nCourt opined:\n<\/p>\n
“After all Section 6A is also one of the provisions of this Act. There is
\nno reason to elevate it to a higher status than the rest of the provisions”
\n.\n<\/p>\n
106. With utmost respect, therein the Court did not take into consideration
\nthat the provisions of Section 6A having been provided by way of
\nexclusionary clause subject to the satisfaction of the conditions precedent
\ncontained therein, and, thus, the same stand at an elevated stage over
\ncharging Section 6 of the Act. The assessing authority while passing an
\norder is required to take into consideration the jurisdictional fact. Once
\nit is found, having been conferred with a plenary power to determine its
\nown jurisdiction, that he did not have any jurisdiction under the Act, the
\nopinion of the assessing authority attains finality. What would be a
\njurisdictional fact has been noticed by this Court in Shrisht Dhawan
\n(supra) in the following terms:\n<\/p>\n
“19… A Jurisdictional fact is one on existence or non-existence of which
\ndepends assumption or refusal to assume jurisdiction by a court, tribunal
\nor an authority. In Back’s Legal Dictionary it is explained as a fact,
\nwhich must exist before a court can properly assume jurisdiction of a
\nparticular case. Mistake of fact in relation to jurisdiction is an error of
\njurisdictional fact. No statutory authority or tribunal can assume
\njurisdiction in respect of subject matter which the statute does not confer
\non it and if by deciding erroneously the fact on which jurisdiction depends
\nthe court or tribunal exercises the jurisdiction then the order is
\nvitiated. Error of jurisdictional fact renders the order ultra vires and
\nbad… ”\n<\/p>\n
107. In South India Corporation (P) Ltd. v. Secretary. Board of Revenue<\/a>  :
\n[1964]4SCR280 , this Court has held that special provisions shall prevail
\nover the general provisions.\n<\/p>\n
108. It is further trite that an administrative authority or a quasi-
\njudicial authority while adjudicating upon a lis is obligated to pose and
\nanswer a right question so as to enable it to arrive at a conclusion as to
\nwhether he has jurisdiction in the matter or not. By reason of a legal
\nfiction which becomes attracted in terms of determination made thereunder,
\nthe provisions of the Central Act shall stand excluded..\n<\/p>\n
109. In A.V. Fernandez v. the State of Kerala  : [1957]1SCR837 , this Court
\nobserved:\n<\/p>\n
“There is a broad distinction between the provisions contained in the
\nstatute in regard to the exemptions of tax or refund or rebate of tax on
\nthe one hand and in regard to the non-liability to tax or non-imposition of
\ntax on the other. In the former case, but for the provisions as regards the
\nexemptions or refund or rebate of tax, the sales or purchases would have to
\nbe included in the gross turnover of the dealer because they are prima
\nfacie liable to tax and the only thing which the dealer is entitled to in
\nrespect thereof is the deduction from the gross turnover in order to arrive
\nat the net turnover on which the tax can be imposed. In the latter case,
\nthe sales or purchases are exempted from taxation altogether. The
\nLegislature cannot enact a law imposing or authorising the imposition of a
\ntax thereupon and they are not liable to any such imposition of tax. If
\nthey are thus not liable to tax, no tax can be levied or imposed on them
\nand they do not come within the purview of the Act at all. The very fact of
\ntheir non-liability to tax is sufficient to exclude them from the
\ncalculation of the gross turnover as well as the net turnover on which
\nsales tax can be levied or imposed. ”\n<\/p>\n
110. In Sahney Steel (supra) whereupon reliance has placed by the assessing
\nauthority, a contention was raised that the registered office and the
\nbranch office were separately registered as dealers under the sales tax law
\nand transaction effected by the branch office should not be identified with
\ntransactions effected by the registered office, Pathak, J., as the learned
\nChief Justice-then was, observed :\n<\/p>\n
“..We are unable to agree. Even if, as in the present case, the buyer
\nplaces an order with the branch office and the branch office communicates
\nthe terms and specifications of the orders to the registered office and the
\nbranch office itself is concerned with the sales dispatching, billing and
\nreceiving of the sale price, the conclusion must be that the order placed
\nby the buyer is an order placed with the Company and for the purpose of
\nfulfilling that order the manufactured goods commence their journey from
\nthe registered office within the State of Andhra Pradesh to the branch
\noffice outside the State for delivery of the goods to the buyer…”\n<\/p>\n
111. The Court in the facts of that case held that the movement from the
\nhead office to the branch office was for the purpose of delivery to the
\nbranch office, thereafter to the buyer through the branch office. The
\nbranch office merely acted as a conduit through which the goods passed on
\ntheir way to the buyer. It is, however, relevant to note that the Court
\nnoticed :\n<\/p>\n
“…It would have been a different matter if the particular goods had been
\ndispatched by the registered office at Hyderabad to the branch office
\noutside the State for sale in the open market and without reference to any
\norder placed by the buyer. In such a case if the goods are purchased from
\nthe branch office, it is not a sale under which the goods commenced their
\nmovement from Hyderabad. It is a sale where the goods moved merely from the
\nbranch office to the buyer…”\n<\/p>\n
112. The purpose of verification of the declaration made in Form F,
\ntherefore, is as to whether the branch office acted merely as a conduit or
\nthe transaction took place independent to the agreement to sell entered
\ninto by and between the buyer and the registered office or the office of
\nthe company situated outside the State. The said decision therefore, does
\nnot run counter to our reading of the said provision. Furthermore, the
\nquestion which has been, raised before us had not been raised therein.\n<\/p>\n
113. We, therefore, are of the opinion that the observations made by this
\nCourt in Ashok leyland (supra) to the effect that an order passed under
\nSub-Section (2) of Section 6A can be subject matter of reopening of a
\nproceeding under Section 16 of the State Act was not correct.\n<\/p>\n
114. However, we may hasten to add that the same would not mean that even
\nwherein such an order has been obtained by commission of fraud, collusion,
\nmisrepresentation or suppression of material facts or giving or furnishing
\nfalse particulars, the order being vitiated in law would not come within
\nthe purview of the aforementioned principle.\n<\/p>\n
115. An order of assessment is albeit passed under the State Act. But once
\nit is held that the concerned State Act as also the Central Act is not
\napplicable, as a consequence whereof sales tax would be payable under
\nanother State Act, it is doubtful as to whether the power to reopen the
\nproceedings under the State Act or the Central Act would be attracted.
\nThere does not exist any power in the statute to rectify a mistake. In that
\nview of the matter, mere change in the opinion of the assessing authority
\nor to have a re-look at the matter would not confer any jurisdiction upon
\nhim to get the proceedings reopened. Discovery of a new material although
\nmay be a ground but that itself may not be a ground for reopening the
\nproceedings unless and until it is found that by reason of such discovery,
\na jurisdictional error has been committed. In other words, when an order
\npassed in terms of Sub-Section (2) of Section 6A is found to be illegal or
\nvoid ab initio or otherwise voidable, the assessing authority derives
\njurisdiction to direct reopening of the proceedings and not otherwise.\n<\/p>\n
116. In Shrisht Dhawan (supra) this Court has held:\n<\/p>\n
“20. Fraud and collusion vitiate even the most solemn proceedings in any
\ncivilised system of jurisprudence. It is a concept descriptive of human
\nconduct. Michael Levi likes a fraudster to Milton’s sorcerer, Compus who
\nexulted in his ability to, ‘wing me into the easy-hearted man and trap him
\ninto snares’. It has been defined as an act of trickery or deceit. In
\nWebster’s Third New International Dictionary fraud in equity has been
\ndefined as an act or omission to act or concealment by which one person
\nobtains an advantage against conscience over another or which equity or
\npublic policy forbids as being prejudicial to another. In Black’s Legal
\nDictionary, fraud is defined as an intentional perversion of truth for the
\npurpose of inducing another in reliance upon it to part with some valuable
\nthing belonging to him or surrender a legal right; a false representation
\nof a matter of fact whether by words of by conduct, by false or misleading
\nallegations, or by concealment of that which should have been disclosed,
\nwhich deceives and is intended to deceive another so that he shall act upon
\nit to his legal injury. In Concise Oxford Dictionary, it has been defined
\nas criminal deception, use of false representation to gain unjust
\nadvantage; dishonest artifice or trick. According to Halsbury’s Laws of
\nEngland, a representation is deemed to have been false, and therefore a
\nmisrepresentation, if it was at the material date false in substance and in
\nfact. Section 17 of the Contract Act defines fraud as act committed by a
\nparty to a contract with intent to deceive another. From dictionary meaning
\nor even otherwise fraud arises out of deliberate active role of
\nrepresentator about a fact which he knows to be untrue yet he succeeds in
\nmisleading the represented by making him believe it to be true. The
\nrepresentation to become fraudulent must be of the fact with knowledge that
\nit was false. In a leading English Case (Derry v. Peek (1886-90) All ER 1)
\nwhat constitutes fraud was described thus: (ARR ER p. 22 B-C):\n<\/p>\n
Fraud is proved when it is shown that a false representation has been made\n<\/p>\n
(i) knowingly, or (ii) without belief in its truth, or (iii) recklessly,
\ncareless whether it be true or false.”\n<\/p>\n
117. This aspect of the matter has been considered recently by this Court
\nin Roshan Deen v. Preeti Lal<\/a>  : (2002)ILLJ465SC , Smt. Anita v. R. Rambilas
\n: AIR2003AP32 , Ram Preeti Yadav v. U.P. Board of High School and
\nIntermediate Education and Ors.<\/a>  : AIR2003SC4268 and Ram Chandra Singh v.
\nSavitri Devi and Ors.<\/a>  : (2003)8SCC319<\/p>\n
118. Suppression of a material document would also amount to a fraud on the
\nCourt. (See Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and
\nOrs.<\/a>  : [1996]2SCR949 and S.P. Chengalvaraya Naidu (Dead) By…. .LRs. v.
\nJagannath (Dead) by Lrs. and Ors.  : AIR1994SC853 .\n<\/p>\n
119. There is no law that only because no appeal is provided the order
\nwould not attain finality. (See Commissioner of Income Tax, Bombay v.
\nAmritlal Bhogilal & Co.<\/a>  : [1958]34ITR130(SC)<\/p>\n
RES-JUDICATA:\n<\/p>\n
120. The principle of res judicata is a procedural provision. A
\njurisdictional question if wrongly decided would not attract the principle
\nof res judicata. When an order is passed without jurisdiction, the same
\nbecomes a nullity. When an order is a nullity, it cannot be supported by
\ninvoking the procedural principles like, estoppel, waiver or res judicata.
\nThis question has since been considered in Sri Ramnik Vallabhdas Madhvani
\nand Ors. v. Taraben Pravinlal Madhvani<\/a>  : (2004)1SCC497 wherein this Court
\nobserved in the following terms :\n<\/p>\n
“So far as the question of rate of interest is concerned, it may be noticed
\nthat the High Court itself found that the rate of interest should have been
\ndetermined at 6%. The principles of res judicata which according to the
\nHigh Court would operate in the case, in our opinion, is not applicable.
\nPrinciples of res-judicata is a procedural provision. The same has no
\napplication where there is inherent lack of jurisdiction.\n<\/p>\n
In Chief Justice of A.P. and Anr. v. L.V.A. Dikshitulu and Ors.<\/a> etc.  :
\n[1979]1SCR26 , the law is stated in the following terms:\n<\/p>\n
“23. As against the above, Shri Vepa Sarathy appearing for the respective
\nfirst respondent in C.A. 2826 of 1977, and in C.A. 278 of 1978 submitted
\nthat when his client filed a writ petition (No. 58908 of 1976) under
\nArticle 226 of the Constitution in the High Court for impugning the order
\nof his compulsory retirement passed by the Chief Justice, he had served, in
\naccordance with Rule 5 of the Andhra Pradesh High Court (Original Side)
\nRule, notice on the Chief Justice and the Government Pleader, and, in
\nconsequence, at the preliminary hearing of the writ petition before the
\nDivision Bench, the Government, Pleader appeared on behalf of all the
\nrespondents including the Chief Justice, and raised a preliminary objection
\nthat the writ petition was not maintainable in view of Clause 6 of the
\nAndhra Pradesh Administrative Tribunal Order made by the President under
\nArticle 371D which had taken away that jurisdiction of the High Court and
\nvested the same in Administrative Tribunal. This objection was accepted by
\nthe High Court, and as a result, the writ petition was dismissed in limine.
\nIn these circumstances – proceeds the argument – the appellant is now
\nprecluded on principles of res judicata and estoppel from taking up the
\nposition, that the Tribunal’s order is without jurisdiction. But, when Shri
\nSarathi’s attention was invited to the fact that no notice was actually
\nserved on the Chief Justice and that the Government Pleader who had raised
\nthis objection, had not been instructed by the Chief Justice or the High
\nCourt to put in appearance on their behalf, the counsel did not pursue this
\ncontention further. Moreover, this is a pure question of law depending upon
\nthe interpretation of Article 371D. If the argument. holds good, it will
\nmake the decision of the Tribunal as having been given by an authority
\nsuffering from inherent lack of jurisdiction. Such a decision cannot be
\nsustained merely by the doctrine of res judicata or estoppel as urged in
\nthe case.”\n<\/p>\n
In Dwarka Prasad Agarwal (D) By LRs. and Anr. v. B.D. Agarwal and Ors.<\/a>  :
\nAIR2003SC2686 , it is stated:\n<\/p>\n
“It is now well-settled that an order passed by a court without
\njurisdiction is a nullity. Any order passed or action taken pursuant
\nthereto or in furtherance thereof would also be nullities. In the instant
\ncase, as the High Court did not have any jurisdiction to record the
\ncompromise for the reasons stated hereinbefore and in particular as no writ
\nwas required to be issued having regard to the fact that public law remedy
\ncould not have been resorted to, the impugned orders must be held to be
\nillegal and without jurisdiction and are liable to be set aside. All orders
\nand actions taken pursuant to or in furtherance thereof must also be
\ndeclared wholly illegal and without jurisdiction and consequently are
\nliable to be set aside. They are declared as such. ” ”\n<\/p>\n
121. In a case where an ordinance promulgated by the President of India
\nwhich had been rendered invalid by a judgment of the High Court, the
\nquestion as to whether an enactment of the Parliament would be barred was
\nnegatived in a recent decision of this Court in Dharam Dutt and Ors. v.
\nUnion of India and Ors.<\/a>  : AIR2004SC1295 . Pointing out that the High Court
\ndid not consider the constitutional questions in the right perspective,
\nthis Court observed:\n<\/p>\n
“The doctrine of Separation of Powers and the constitutional convention of
\nthe three organs of the State, having regard and respect for each other, is
\nenough answer to the plea raised on behalf of the petitioners founded on
\nthe doctrine of Separation of Powers. We cannot strike down a legislation
\nwhich we have on an independent scrutiny held to be within the legislative
\ncompetence of the enacting legislature merely because the legislature has
\nre-enacted the same legal provisions into an Act which, ten years before,
\nwere incorporated in an ordinance and were found to be unconstitutional in
\nan erroneous judgment of the High Court and before the error could be
\ncorrected in appeal the Ordinance itself lapsed.”\n<\/p>\n
CONCLUSION:\n<\/p>\n
122. For the reasons stated hereinbefore, we are of the opinion that the
\nAppellants would be entitled to move the High Court for ventilating their
\ngrievances, However, if the Central Government creates a new forum, it
\nwould be open to them to approach the same.\n<\/p>\n
123. We may now consider the fact of the connected matters:\n<\/p>\n
124. In W.P. (C) No. 195 of 1999 merely a show cause notice has been issued
\nin relation to three assessment years beginning from 1989-1990. This writ
\npetition covers the period 1989-1990, to 1995-1996. In relation to period
\n1990-1991, 1991-1992 and 1992-1993 reopening proceedings had been
\ninitiated. A fresh cause of action has arisen in relation to the other
\nassessment years.\n<\/p>\n
125. Having regard to the fact that the question as to whether the finding
\narrived at by the STAT would attract the exceptions carved out hereinbefore
\nmainly would revolve round the question as to whether determination in
\nterms of Sub-section (2) of Section 6A of the Act has been obtained by
\nplaying fraud or suppression of record or not requires a detailed
\nexamination. Indisputably, the appellant\/ writ petitioner would be entitled
\nto move the High Court in accordance with law.\n<\/p>\n
CIVIL APPEAL @ SLP (C) No. 5579 of 2001<\/p>\n
126. The appellant herein had filed his application praying inter alia for
\nthe following reliefs:\n<\/p>\n
“(a) Grant Special Leave to Appeal against the final Judgment and Order
\ndated 13.11.2000 passed in STA No. 459 of 1999 by the Tamil Nadu Sales Tax
\nAppellate Tribunal (Additional Bench). Chennai.\n<\/p>\n
(b) Pass such other or further order or orders as this Hon’ble Court may
\ndeem fit and proper in the facts and circumstances of the present case and
\nin the interest of justice.”\n<\/p>\n
127. In the said case, no order of reopening has been issued and as such it
\nis not a case where we were required to determine a forum in the light of
\nthe order passed in Ashok Leyland (supra).\n<\/p>\n
C.A. No. 944 of 2001<\/p>\n
128. The question as to whether the transaction in question constitute
\ninter-state sale or intra-state “sale has been decided upto Tribunal. They
\nhave approached this Court without availing the statutory remedies provided
\nfor under the statutes. We, therefore, decline to exercise our discretion
\nand direct that the parties may avail the remedies under the statute.\n<\/p>\n
129. In view of our aforementioned findings, the parties may approach the
\nHigh Court. If necessary, the other States wherein the local sales tax had
\nbeen deposited, may be impleaded as parties so that the lis may be
\ndetermined in their presence. However, in the event, in the meanwhile any
\nforum is created by any Parliamentary Act in terms whereof the inter se
\ndisputes between the parties vis-a-vis the claim of the assessee may be
\ndetermined, they may approach the said forum.\n<\/p>\n
CA No. 943 of 2001 :\n<\/p>\n
130. The appellant herein manufactures explosives. It has its factory
\nsituated at Onnalwadi, Hosur, Dharmapuri District. It is registered under
\nthe Central Sales Tax Act. It filed return for the assessment year 1986-87
\nunder the Central Sales Tax Act, 1956 claiming exemption in respect of a
\nsum of Rs. 34,30,302.73 representing transfer of goods to its branch at
\nDhanbad in the State of Bihar and a sum of Rs. 13,91,547.18 relating to its
\nbranch at Nagpur in the State of Maharahstra. An inspection held by the
\nEnforcement Wing of the respondent; certain documents were recovered from a
\nperusal whereof it transpired that the goods were moved against the prior
\norders and as such they are not entitled to exemption. The Department
\ncontended that it a Coal India Limited which had placed orders for supply
\nof explosives to its various subsidiary companies in North India and its
\nprojects at Asansol, Dhanbad, Ranchi, Nagpur and Bilaspur at specified
\nrates and in that view of the matter the transactions constituted inter-
\nState sales. According to the appellant, however, order placed by M\/s Coal
\nIndia Limited is not an order intending to purchase but merely a standing
\noffer. The objection of the appellant was overruled upto the appellate
\nauthority. The matter went up to the Tamil Nadu Sales Tax Tribunal,
\nCoimbatore wherein it was held that the goods being unascertainable ones
\nmust be held to be general and standard goods and tailor made to the
\nspecial requirements of any customers. It came to the conclusion that the
\ntransactions were only branch transfers and were not liable to sales tax.
\nIt further held that the transactions having taken place outside the State
\nof Tamil Nadu and the transactions having been treated as local sales in
\nother States, the State of Tamil Nadu had no jurisdiction to impose tax in
\nrespect thereof. The Tribunal also accepted the declaration made in terms
\nof Section 6A. The State of Tamil Nadu being aggrieved and dissatisfied
\ntherewith filed Tax Revision Case and by reason of the impugned judgment
\ndated 2.12.1997 the judgment of the Tribunal was reversed. It, however, did
\nnot interfere with the order of the Tribunal as regard penalty. Questioning
\nthe said order, the appeal has been filed before us. Keeping in view the
\nfact that although more than one State is involved, having regard to the
\nfacts and circumstances of the case, it is necessary that the question may
\nbe examined afresh by the High Court in the light of the decision of this
\nCourt. In the writ petition, it will be open to the parties to implead the
\nother States so that, if necessary, the matter may be heard out and
\ndisposed of in their presence. However, in the event another forum is
\ncreated by a Parliamentary Act, it will be open to the parties to approach
\nthe said forum. These appeals and writ petitions are disposed of with the
\naforementioned directions and observations. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ashok Leland Ltd vs State Of Tamil Nadu And Anr on 7 January, 2004 Author: S Sinha Bench: V.N. Khare. Cj, S.B. Sinha, A.R. Lakshmanan CASE NO.: Appeal (civil) 976-979 of 2001 PETITIONER: ASHOK LELAND LTD. RESPONDENT: STATE OF TAMIL NADU AND ANR. DATE OF JUDGMENT: 07\/01\/2004 BENCH: V.N. KHARE. CJ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-86238","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAshok Leland Ltd vs State Of Tamil Nadu And Anr on 7 January, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashok-leland-ltd-vs-state-of-tamil-nadu-and-anr-on-7-january-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashok Leland Ltd vs State Of Tamil Nadu And Anr on 7 January, 2004 - 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