JUDGMENT Prakash Krishna, J.
1. The present revision is directed against the order passed by the Trade Tax Tribunal, Aligarh.
2. The dealer-opposite party carried on the business of manufacture and sale of bicycle locks. Its turnover for the assessment year 1990-91 (Central) was accepted by the assessing officer. However, in respect of certain sales the dealer-opposite party claimed concessional rate of tax, at the rate of four per cent on the supposition that it would be filing the requisite form C subsequently. It failed to submit form C in respect of sale of Rs. 21,18,846.32, at the assessment stage. Subsequently, certain forms were filed before the Deputy Commissioner (Appeals) and the benefit of those forms were extended to it. It is an admitted fact that the dealer-opposite party could not file the requisite number of form C as stated in the returns. Resultantly for certain sales in respect of which the dealer-opposite party initially claimed concessional rate of tax, could not produce form C, consequently tax at the rate of 10 per cent was ultimately levied by the first appellate authority. The dealer-opposite party filed second appeal before the Tribunal and disputed its liability to pay interest on Central sales in respect of which it could not file form C. The Tribunal by the order under revision held that the dealer-opposite party was not liable to pay interest in respect of such sales.
3. Heard the counsel for the parties and perused the record. The learned Standing Counsel submitted that in view of Section 8 of the U.P. Sales Tax Act, 1948, the turnover as disclosed in the account books and the return filed by the dealer was the admitted turnover. The burden to file form C was on the dealer and if a dealer fails to file the requisite form in support of the claim of concessional rate of tax, the tax shall be calculated with reference to the admitted turnover as disclosed in the account books or the returns. The liability to pay tax, therefore, depends on the crucial fact of filing of the requisite form. In absence of requisite forms it cannot be said that the calculation of tax payable was in accordance with the Act. On the other hand, the learned Counsel for the dealer-opposite party submitted that there was a bona fide dispute and as such for non-filing of form C which could not be obtained from the purchasing dealer, liability of interest cannot be fastened on the dealer-opposite party.
4. Section 8 of the U.P. Sales Tax Act has made a provision for payment and recovery of tax. The scheme of Section 8 of the Act is that the tax admittedly payable shall be deposited by the dealer within the prescribed period in the prescribed manner. If a dealer fails to deposit the tax admittedly payable by it within the prescribed period, he shall be liable to pay simple interest at the rate of two per cent per mensem and pay the amount with effect from the date immediately following the last date prescribed till the date of payment of such amount under Sub-section (1) of Section 8 of the Act.
5. The Explanation attached to Section 8(1) of the Act defines the expression "tax admittedly payable". It means the tax which is payable under the Act on the turnover of sales or, as the case may be, the turnover of purchases, or of both, as disclosed in the accounts maintained by the dealer, or admitted by him in any return or proceedings under the Act, whichever is later. Under the Act certain forms have been prescribed to claim certain benefits including concessional rate of tax or nil rate of tax. The concessional rate of tax or nil rate of tax can be claimed on the fulfilment of the specified conditions which include the filing of requisite forms. Meaning thereby, in absence of production of requisite forms, the dealer is liable to pay the tax at the normal rate. Therefore, the burden lay upon the dealer to file the requisite form, failing which the normal rate of tax is payable.
6. A Division Bench of this Court in the case of Ram Sahai Dal Mills v. Sales Tax Officer [1982] UPTC 600 has held that if the dealer did not file any declaration in form 3C(1) from the alleged dealer, the assessee was held liable to pay the tax under Section 3D(2) of the Act and which became the assessee's admitted liability to tax in respect of these transactions under Section 8(1) of the Act. It has been further held that it was not a case of any bona fide dispute raised by the assessee. The tax in respect of these transactions should have been paid along with the filing of the return and since this was not done, the interest became chargeable under Section 8(1) of the Act right from the date of filing of the return up to the date of deposit. Another Division Bench in the case of Annapurna Biscuit Manufacturing Co. v. State of Uttar Pradesh [1982] 50 STC 56 (All) : [1980] UPTC 1320 has held as follows:
The learned Counsel mentioned that as the sale was made to registered dealers and such sales being exempt under Section 3D(1) the petitioner did not commit any error in determining the tax payable to be nil under Section 8(1). Therefore its failure to file form could result in the enhancement of 'tax in excess' but the assessing authority could not while assessing tax create any demand for interest. Reliance was placed on Commissioner of Sales Tax v. Vinus Auto Traders [1980] UPTC 273. None of the submissions has any merit on it. We have already indicated above that liability to pay interest under Sub-section (1) of Section 8 is not affected by deposit of tax assessed within the time specified. The only question, therefore, is whether the calculation of tax payable was in accordance with the Act. It is not disputed that if the petitioner effected sales to a person other than a registered dealer then it was liable to pay tax under Sub-section (2) of Section 3D. The liability to pay tax therefore depended on this crucial fact which is required to be proved by filing form III C-l under Sub-rules (6) and (7) of Rule 12B. It is admitted that these forms were not filed. In the absence of these forms it cannot be said that the calculation of tax payable was in accordance with the Act.
7. The learned Standing Counsel also placed reliance upon a judgment of this Court given in the case of Commissioner of Sales Tax v. National Industries Mirzapur [1980] UPTC 536, wherein this Court in a proceeding under Section 30 of the Act has held that the failure in filing of form C under the Central Sales Tax Act would amount to admission of Central sales tax liability at the rate of 10 per cent and not at the concessional rate of tax.
8. The Supreme Court examined Section 8(1) of the Act in the case of Commissioner of Sales Tax v. Qureshi Crucible Centre [1993] 89 STC 467 (SC); [1993] UPTC 901. It has been held that Section 8(1) does not say that the non-payment should be mala fide. It has been further held that where a dealer calculated the tax at an inapplicable rate, the dealer is liable to pay interest under Section 8(1) of the Act. The expression "tax admittedly payable" means the tax which is payable, inter alia, according to the return filed by the dealer.
9. Commissioner of Sales Tax v. Indian Herbs Research and Supply Co. [1982] UPTC 804, is directly on the controversy involved in the present case. This Court has considered Section 8 of the Central Sales Tax Act, 1956 along with Section 8 of the U.P. Sales Tax Act, as amended by U.P. Act No. 38 of 1975 and has held that where a dealer is seeking exemption from levy of tax upon some part of the turnover, unless he fulfils the statutory requirement for such a claim he shall have to pay interest upon the unpaid amount of tax calculated on the turnover worked out without regard to claim of exemption. In this case the High Court disapproved the view of the Tribunal that interest for non-filing of form "C" on the unpaid amount would be payable from the date of assessment. The reason is that in Sub-section (1) of Section 8 of the Act, the starting point for the liability for payment of interest on the unpaid part of the admitted tax has been provided for and it is June 1, 1975 or the last date prescribed for payment of admitted tax, whichever is later.
10. The learned Counsel for the dealer has placed reliance upon a judgment of this Court in the case of Commissioner of Trade Tax v. Ram Raton Ambrish Kumar [2003] 22 NTN 522. After careful reading of above case, I find that it has no application to the controversy involved in the present case. In that case, the revision was dismissed by this Court on the ground that the finding of the Tribunal that the dealer was under the bona fide belief and there was no mala fide, is a question of fact. No principle of law was decided. Apart from above, the earlier various authoritative pronouncements referred to in the earlier part of this judgment have not been considered by the learned single judge.
11. In view of the authoritative pronouncements referred to above it is difficult for me to place any reliance upon the aforesaid ruling cited by the learned Counsel for the assessee.
12. Before parting with the case it may be stated here that the Supreme Court in the case of India Carbon Ltd. v. State of Assam [1997] 106 STC 460 : [1998] UPTC 1 interpreted Section 9(2) of the Central Sales Tax Act and held that the provisions relating to the interest can be employed by the State sales tax authorities only if the Central Act makes a substantive provision for the levy and charge of interest on Central sales. It was held that in absence of substantive provision for the levy and charge of interest, resort to State Sales Tax Act cannot be had. Subsequently, the Parliament amended the Central Sales Tax Act by Act No. 10 of 2000 and inserted Section 9(2B). Section 120 of Amending Act 10 of 2000 contains validation clause. The validity of the aforesaid amendment was challenged in the case of Kajaria Ceramics Ltd. v. State of Uttar Pradesh [2003] 38 STR 588 on the ground that the insertion of Sub-section (2B) in Section 9 on May 12, 2000 is prospective and is not retrospective. This Court has upheld the validity of the aforesaid Amending Act and has held that the liability to pay outstanding interest is there and shall always be there on the unpaid Central sales tax.
13. The revision is allowed. The order of the Tribunal is set aside and the second appeal filed by the dealer-opposite party before the Tribunal stands dismissed. No order as to costs.