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Judgment
Ashwani Kumar Mishra, J.—Heard Sri R.R. Agrawal, learned Senior Counsel assisted by Sri Suyash Agrawal appearing for the revisionist, and learned Standing Counsel for the respondent.
This revision by the assessee is directed against an order passed by the Tribunal, dated 13th December, 2010, passed in Second Appeal No.575 of 2002.
The dispute herein relates to assessment year 1997-98, and pertains to claim of stock transfer as well as interstate sale. The assessee claims that stock transfer to the extent of Rs.1,39,76,58,073.05 was made to various branches of the assessee situated throughout the country. It appears that in respect of claim of substantial amount out of it Form-F was filed. An order of assessment was ultimately passed holding the assessee liable to payment of tax @ 15%, in respect of stocks not covered by Form-F. This order was challenged in appeal. During the pendency of appeal, 07 Form-F were received by the assessee and were filed along with an application under Section 12-B of the U.P. Trade Tax Act, 1948. The first appellate court remitted the matter to the assessing authority for verifying such facts. While the matter pursuant to remand was pending before the assessing authority, the revisionist received another Form-F No.390686 for a sum of Rs.3,72,433.30. This Form, however, was not accepted by the assessing authority. Claim in respect of 07 Forms, which were remitted by the first appellate authority, however, was accepted. To the extent Form No.390686 was not accepted, the assessee filed an appeal, which was rejected, and ultimately the matter was taken to Tribunal. During pendency of second appeal before the Tribunal, the assessee received 03 further Form F, and filed it along with application under Section 12-B. The Tribunal vide order impugned has rejected the assessee''s claim and, and all 04 forms i.e. one filed at the stage of re-assessment pursuant to remand and 03 filed at the stage of Tribunal were rejected. It further transpires that in respect of balance stock transfer amounting to Rs.28,06,523.73, Form-F was not filed at all. In respect of such stock transfer, it was alleged that prior to the year 2002, filing of Form-F was not mandatory, and that supporting documents were filed before the Tribunal to accept claim of stock transfer. The assessee at the stage of Tribunal has also filed Form-C No.1438166 in respect of inter-state sale amounting to Rs.2,48,603/-, which has not been accepted by the Tribunal. The claim of assessee in respect of waiver of interest payable under the Interest Waiver Scheme has also been rejected. On all four counts the assessee is aggrieved and has filed the present revision.
Following questions have been framed for consideration:-
"(i) Whether on facts and circumstances of the case the Tribunal was right in holding the Assessing Authority in remand proceeding had rightly not accepted Form C No.1438166 and Form F No.390686 on the ground that the same was not submitted in the original assessment proceeding or before the first appellate authority?
(ii) Whether on the facts and circumstances of the case the Tribunal was right in rejecting the application for additional evidence for bringing Form C No.1438166 and Form F No.390686 rejected by the assessing authority and 3 Form F No.244086, 656480, and 623496 relating to stock transfers amounting to Rs.9,73, 753.27, received after the appellate order dated 04.04.2002?
(iii) Whether the Tribunal rightly did not allowed those stock transfers to which form F was not received although the stock transfer vouchers, bilties and details relating to stock transfer was submitted before the assessing authority and the Tribunal without considering each and every stock transfer individually specially when for A.Y. 1993-94 (Central) decided on 26.03.2007, the Tribunal in case of the applicant has accepted the stock transfers despite form F having not submitted?
(vi) Whether the Tribunal rightly affirmed the imposition of interest ignoring that as per Government interest waiver scheme-2003 the applicant opted for the waiver of the interest by deposit of Rs.1,27,362/- as balance demand and Rs.52,728/- being 30% of the interest?"
Records reveal that after the matter was remitted to the assessing authority, for considering genuineness of 07 Form-F, pursuant to the order of the first appellate authority, the assessee filed another Form-F No.390686. This Form-F has been rejected by the authorities as well as the Tribunal, on the ground that there was no direction to entertain such Form-F by the appellate authority. It is also recorded that time allowed by assessing authority to deposit such form had already expired, and it was not open for the revisionist to submit Form-f, at this stage. Learned counsel for the revisionist has relied upon a Full Bench judgdment of this Court in M/s Ram Dayal Harbilas v. The Commissioner of Sales Tax, reported in AIR 1979 Allahabad 267, to contend that pursuant to an order of remand passed by the first appellate authority, the assessing authority would be entitled to exercise its original jurisdiction, and Form- F filed at the such stage was liable to be entertained. Para-23 of the judgment, wherein the question framed for consideration was answered, reads as under:-
"23. In view of the aforesaid discussion, we answer the question referred to us by the Division Bench in the following manner:-
"Where an order of assessment is set aside by the Appellate Authority which remands the case to the assessing authority with certain directions for making a fresh assessment, the assessing authority has subject to carrying out such directions, the same power as it originally had in making the assessment under Section 7 of the U. P. Sales Tax Act. But where the order of assessment is set aside by a revisional authority under Section 10 of the Sales Tax Act, the jurisdiction of the Sales Tax Officer to make the assessment can be circumscribed by the specific directions given by the Revisional Authority in that regard. If under the remand order made by the Revising Authority the jurisdiction of the Sales Tax Officer to make the assessment has been limited, the Sales Tax Officer will have the jurisdiction to make the assessment only to the extent to which he has been permitted to do so under the orders of the Revising Authority.""
In the facts of the present case, an order of remand had been passed by the first appellate authority, and the assessment proceedings were pending. At such stage Form-F No.390686 filed before the assessing authority was liable to be accepted. The Tribunal was not justified in affirming the view of the authorities that such form was not liable to have been entertained.
So far as filing of 03 Form-F at the stage of Tribunal is concerned, the same appears to have been backed by an application filed under Section 12-B of the Act. The forms are annexed along with this revision. These forms have been issued on 5.8.2002, 15.2.2002 and 15.3.2002, which are much after passing of the order by the first appellate authority, and during the pendency of second appeal before the Tribunal. An application under Section 12-B was also filed to entertain such facts. Learned Standing Counsel is right in contending that specific reason has not been assigned in Section 12-B application for belated filing of Form-F, but that would not be a material consideration. It was on record before Tribunal that these forms had been issued during the pendency of second appeal before Tribunal. The Tribunal, therefore, was required to have examined such forms, and it ought not to have been discarded, merely because it was filed for the first time before the Tribunal. The finding of the Tribunal that no reasons have been recorded in the application, is not convincing, inasmuch as the reasons were apparent on record, as such forms were issued during pendency of the second appeal. Once the reasons were apparent on the face of record, the Tribunal was not justified in discarding these forms and finding of Tribunal cannot be sustained.
So far as claim with regard to stock transfer of Rs.28,06,523.73 is concerned, it is apparent that the assessee from the very initial stages has pressed its claim of stock transfer on the basis of documents on record. It was contended before the Tribunal that assessment period herein was 1997-98, and pre-amended position in law would operate, wherein the issuance of Form-F was not mandatory. It was open for the assessee to have established with reference to other materials brought on record that the stock transfer had taken place. Materials in that regard had been relied upon. Before the first appellate authority, the memo of appeal contained ground no.4, as well as ground no.5 in the memo of appeal filed before the tribunal, which are reproduced hereinafter:-
"4. Because the Assessing Authority has not given adequate opportunity for collection of F Forms for the sales worth Rs.4152710.50 even in spite of the written request even otherwise. The complete evidence regarding stock transfer of these goods is available on the record and it should have been accepted in absence form F which is not mandatory."
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"5. Because the ld. assessing officer has taxed the stock transfer for non-filing of F forms and the other details about each and every stock transfer have been overlooked by him ignoring the fact that F form is not mandatory. The learned D.C. (Appeals) has wrongly confirmed the arbitrary finding of the assessing officer."
The specific case of the assessee of stock transfer backed by bill and other materials, which have been brought on record, have also not been taken note of by the Tribunal in its order. Once the plea of stock transfer based on record had been set up before the Tribunal, it was expected that the Tribunal shall deal with such issues, being the highest fact finding authority, which it has failed to do. The order of Tribunal, therefore, on such count also cannot be sustained, and the matter is required to be reconsidered by the Tribunal on such facts.
Since the matter is being remitted back to the Tribunal for a fresh consideration, in view of the observations made above, the question of grant of benefit under the Interest Waiver Scheme need not be commented upon, at this stage, inasmuch as such claim would have to be examined in light of the adjudication made by the Tribunal afresh, pursuant to the directions issued in the present matter. The plea of interstate sale being backed by Form-C filed before Tribunal shall also be examined, in accordance with law. It is clarified that the adjudication made by the Tribunal shall be confined to the materials already available on record, and an opportunity to lead fresh evidence need not be granted to the assessee.
The revision stands disposed of, accordingly.