Hon'ble Pankaj Mithal, J.
(Delivered by Hon'ble Rajes Kumar, J.) In the present writ petition the petitioner seeks the following reliefs :
"(i) that a suitable writ, order or direction in the nature of certiorari be issued quashing the circular No. 144 dated 25.6.2001 requiring four forms to be furnished in respect of single transaction of sale or purchase of Rs. 16 lacs;
(ii) that a suitable writ, order or direction in the nataure of mandamus or prohibition be issued restraining/prohibiting the respondent nos. 2 and 3 from insisting upon furnishing various forms in respect of single transaction of sale or purchase of more than Rs. 5 lacs;
(iii) that a suitable writ, order or direction in the nature of certiorari be issued quashing the order dated 15.11.2003 passed by respondent no. 3 (Annexure-2 to the writ petition);
(iv) that any other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case be also issued in favour of the petitioner."
The brief facts giving rise to the present writ petition are that the petitioner is a Public Limited Company incorporated under the Indian Companies Act, 1956 and is registered both under the U.P. Trade Tax Act as well as under Central Sales Tax Act. The petitioner is engaged in the manufacturing of two-wheelers Yamaha Motor Cycle at its factory situate in Surajpur Industrial Area, Greater Noida. The assessment year involved is 2000-01. The motor cycles were liable to tax at the point of sales to the consumers.
According to the petitioner, during the assessment year 2000-01, it has sold motor cycles to the various registered dealers to the extent of Rs.
55,29,37,660/-. However, the petitioner has filed 275 forms III-A worth Rs. 33,06,45,419/- during the course of assessment proceedings.
The assessing authority found that out of the aforesaid 275 forms III- A, 121 forms III-A of Rs. 23,93,63,728/- were of more than Rs. 5 lacs for each transaction of sale and hence the assessing authority returned those forms to the petitioner to get those forms amended. For the purposes of filing the amended forms and for balance forms the assessing authority has allowed time upto 31.5.2003, vide assessment order dated 25.2.2003 which has been further extended till 30.7.2003. The assessing authority, however, accepted 153 forms III-A for Rs. 9,12,81,691/-, which were in order.
The petitioner filed 654 forms III-A before the assessing authority. The assessing authority passed an order under Section 22 of the U.P. Trade Tax Act (called the 'Act' for short) on 15.11.2003. He has accepted the form III-A for Rs. 5,24,26,373/-. The assessing authority, however, has not accepted 64 forms III-A of the value of Rs. 2,63,64,557/- obtained from the registered purchasing dealer, filed on 26.9.2003, and 87 forms III-A of Rs. 3,67,52,206/- and 6 forms III-A of Rs. 21,04,995/-, which were filed during the hearing of the case on 15.11.2003, the total of which comes to Rs. 6,52,21,758/- on the ground that they were filed beyond the period allowed for the submission of forms. The assessing authority further held that 31 forms issued by S/Sri Aman Enterprises, Shahjahanpur, S/Sri Hindustan Auto-mobiles, Bhadohi, S/Sri Shakti Auto-mobiles, Farrukhabad, and S/Sri Spunic Auto-Engineering Co., Faizabad, were issued after 21.4.2001, therefore, against these forms the benefit of only Rs. 5 lacs can be allowed. It has been directed to return the forms III-A to the dealer. In this way, as against the amount of Rs. 3,48,18,537/- the benefit of Rs. 1,60,00,000/- has been allowed and the claim of Rs. 1,88,18,537/- has been disallowed. Since the forms for the amount of Rs. 3,48,18,537/- has been returned for further submission by 15.12.2003, realisation of the tax against these forms has been stayed.
Heard Sri Bharat Ji Agrawal, Senior Advocate, appearing for the petitioner and learned Standing Counsel.
Learned counsel for the petitioner submitted that circular No. 144 3 dated 25.6.2001 requires 4 forms to be furnished in respect of single transaction of sale or purchase of Rs. 16,00,000/- is contrary to the rules and, therefore, according to the petitioner, disallowance of the benefit of form III-A for the period issued after 21.4.2001 for the amount exceeding Rs. 5 lacs is not justified. He submitted that the rule only requires furnishing of form III-A not exceeding Rs. 5 lacs for each transaction and not furnishing of several forms for one transaction exceeding Rs. 5 lacs. He further submitted that the motor cycle is single point taxable goods and in case of rejection of the claim of exemption against the alleged form III-A, the petitioner as well as the purchasers would be subjected to tax.
Learned Standing Counsel submitted that by the circular only the rule has been interpreted. There is no infirmity in the circular and it is in consonance with the rule. He submitted that the petitioner has submitted itself to the direction of the assessing authority in the order dated 25.2.2003 and taken back form III-A for resubmission and has further taken back the disputed 32 forms III-A which have been returned vide order dated 15.11.2003 for necessary amendment. There is no averment in the writ petition that such forms have not been taken back and, therefore, it is not open to the petitioner to dispute the view of the assessing authority in the orders dated 25.2.2003 and 15.11.2003. He submitted that if the petitioner was aggrieved with the view taken by the assessing authority, the same would have been challenged after passing the assessment order dated 25.2.2003 and without taking back the forms. The petitioner, therefore, cannot be allowed any benefit in the absence of the forms.
Having heard learned counsel for the parties, we have given our anxious consideration to the rival submissions. It would be beneficial to refer some of the relevant provisions, which are as follows :
"Section 3-AAA. Presumption regarding certain sales.
Where goods are liable to tax under this Act only at the point of sale to consumer, every sale by a dealer -
(a) to a registered dealer who does not purchase them for resale, within the State or in the course of inter-State trade or commerce, in the same form and condition in which he has purchased them or 4
(b) to any person other than a registered dealer shall be deemed to be a sale to the consumer unless the dealer proves otherwise to the satisfaction of the assessing authority and for that purpose also furnishes to the assessing authority such declaration, obtained from the purchasing dealer, in such form and manner and within such period, as may be prescribed."
"Rule 12-A. Exemption of certain sales.
(1) A registered dealer who wishes to purchase any goods, liable to tax under sub-section (1) of section 3-A or section 3-AA at the point of sale to the consumer, without payment of tax shall furnish to selling dealer a certificate in form III-A, duly filed in and signed by him.
(2) .....................
(3) .....................
(4) .....................
(5) .....................
(6) .....................
(7) No single certificate shall cover more than one bill or cash memo, as the case may be."
Rule 12-A(7) after amendment by the U.P. Trade Tax (Amendment) Rules, 2001, published on the Gazette on 1.5.2001, reads as follows :
"(7) No single certificate shall cover more the transactions of purchases of sales of more than one assessment year and of value more than Rs. 5 lacs."
Circular No. 144/25.6.2001, issued by the Commissioner of Trade Tax, reads as follows :
eSuqvy ifjirz la[;k& [email protected]&6&2001 i0 la0& fof/k&2 (1) ekQh @[kkn+; &(2000&2001)@[email protected] O;kikj dj dk;kZy; dfe'uj] O;kikj dj] mRrj izns'k (fof/k vuqHkkx) y[kuÅ% fnukad % twu 25] 2001 leLr vflLVsaUV dfe'uj (dj fu/kkZj.k) O;kikj dj leLr O;kikj dj vf/[email protected] O;kikj dj vf/kdkjh Js.kh&2 mRrj izns'k! mRrj izns'k O;kikj dj (la'kks/ku) fu;ekoyh &2001 fo"k;d 'kkldh; foKfIr lea[;k&d -fu-
&2&[email protected] X;kjg&9 (230)@95 m0 iz0 vf/k0 &15&48 &fu;e &1948& 2001 (2) fnukad 21&4&2001 }kjk QkeZ &3d ] QkeZ &3[k ]QkeZ &3x (1) QkeZ &3x (2) ] QkeZ &3 Mh (1) dh ekSfnd lhek :0 5 yk[k fu/kkZfjr dh x;h gS! O;kikfj;ksa ls izkIr izR;kosnu ds vuqlkj vf/kdkfj;ksa dks blds lEca/k esa fLFkfr Li"V ugha gS! 5 Mdr lEca esa Li"V fd;k tkrk gS fd ;fn fdlh O;kikjh }kjk ,d [email protected] ls :0 16 yk[k dk laO;ogkj fd;k tkrk gS rFkk blds fo:} mijksDr QkeZ tkjh fd;s tkrs gSa rks bl ,d laO;ogkj ds fy, ikap&ikap yk[k :i;s ds rhu QkeZ ,oa ,d yk[k dk ,d QkeZ tkjh fd;k tk;sxk! d`i;k rnuqlkj dk;Zokgh fd;k tkuk lqfuf'pr djsa! (nhfidk nqXxy) izHkkjh dfe'uj O;kikj dj] m0 iz0 A Division Bench of this Court in the case of Govind Ram Tansukh Rai & Co., Budaun v. Commissioner of Sales Tax, U.P. reported in 1985 UPTC 1060 has held that the filing of the form for the claim of exemption or benefit of concessional rate of tax is mandatory. The view of this Court has been approved by the apex Court in the case of Commissioner of Sales Tax v. Prabhudayal Prem Narain reported in 1988 UPTC 1204. In the case of Indian Agencies (Regd.) Bangalore v. Additional Commissioner of Commercial Taxes, Bangalore reported in JT 2005 (1) SC 16 the apex Court further held that the form should be a valid form in accordance to the rules. If the form is not in accordance to the rules the benefit cannot be allowed.
The language of Rule 12-A(7) is unambiguous and plain. It says that no single certificate shall cover the transactions of the purchases or sales of more than one assessment year and of the value of more than Rs. 5 lacs. It has two parts. One part says that one single form shall not cover the transactions of purchases or sales of more than one year and the other part says that single form shall not be of more than Rs. 5 lacs. Therefore, as per rule the single form exceeding the value of Rs. 5 lacs was not admissible. The value of Rs. 5 lacs was not with reference to the transaction and, therefore, the argument of learned counsel for the petitioner that as per rule one form of more than Rs. 5 lacs for one transaction was admissible cannot be accepted. In this view of the matter, we are of the view, that the circular No. 144 dated 25.6.2001, issued by the Commissioner, cannot be said to be contrary to the rules.
In the present case, in pursuance of the assessment order dated 25.2.2003, the petitioner has received back the forms exceeding Rs. 5 lacs 6 returned by the assessing authority on the ground that it was not admissible and the petitioner has submitted such form after the amendment. In this way the petitioner has submitted itself to the view taken by the assessing authority. If the petitioner was aggrieved by the view of the assessing authority, the petitioner should have challenged the assessment order dated 25.2.2003 but the petitioner has not challenged the assessment order. Further in the order passed under Section 22 dated 15.11.2003 the assessing authority has directed for return of 32 forms valuing Rs. 3,48,18,537/- for necessary amendment. It is not the case of the petitioner that such 32 forms have not been returned to the petitioner. There is no averment in the writ petition in this regard. Therefore, we are of the view that it is not open to the petitioner to challenge the view of the assessing authority that Forms exceeding Rs. 5 lacs are admissible, after receiving back the said forms.
No other point has been pressed.
For the reasons stated above, the writ petition is devoid of any merit and is, accordingly, dismissed. There shall be no order as to cost.
Dated : 28.5.2010.
PG.