Decided on January 09,1967

STATE Appellant
MISHRA Respondents


- (1.)THIS revision has been filed on behalf of the State against the order of Dy. Commissioner, Appeals, Jaipur dated 27. 7. 64.
(2.)THE facts are that the Sales Tax Officer, Ajmer District vide assessment order dated 3. 9. 63 taxed the non-applicant firm for inter state sales of the order of Rs. 29,116,4 @ 7% as these sales were not covered by 'c' forms. Against this order the non-applicant firm went in appeal before the Dy. Commissioner, Commercial Taxes (Appeals) Jaipur who vide his impugned order partly accepted the appeal of the non-applicant firm to the extent of sales of Rs. 2000/- in respect of which C form had been produced in his court and were taxed at 1% and the remainder at 7% as ordered by the Sales Tax Officer. THE State have come against this order in revision.
I have heard counsel for the State. The non-applicant firm was not represented despite notice and hence ex-parte proceedings were taken.

Counsel for the State contended that the Dy. Commissioner Appeals should not have redued the amount of tax in respect of Rs. 2000/- as the C forms were not produced before the Assessing Authority. The Assessing Authority had corre-ctly assessed and lower appellate court should have seen that strict compliance of law had been done. S. T. C. 1965 page 607 was cited in support of this plea as also other ruling. Sec. 8 (1) of the Central Sales Tax as it stood on 1. 3. 63 and which is applicable to the present case reads as follows: -

Every dealer, who in the course of inter-state trade or commerce sells to the Govt. any goods or sells to a registered dealer other than the Govt. goods of the description referred to in sub-section (3) shall be liable to pay tax under this Act which shall be one percent of his turn over. " Sub-sec. (4) of sec. 8 further lays down: - "the provisions of sub-sec. (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner; (a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority. " 1956 R. L. W. page 95 (Gilluram vs. Kedarnath) which was referred to by the Govt. Advocate lays down that a party cannot be allowed to produce additional evidence in appellate court to patch up weaknesses in the case. The additional evidence can be admitted by the appellate court when it itself requires any document to be produced to enable it to pronounce judgment or for any other substantial cause. 1965 S. T. C. page 607 (Kedarnath Jute Manufacturing Co. Ltd. vs. Commercial Tax Officer & others) holds - "where a dealer claims exemption with regard to sales to a registered dealer, the furnishing of the declaration forms under sec. 5 (2) (l) (ii) of the Bengal Finance (Sales Tax) Act, 1941 issued by the purchasing dealer, is a condition for claiming the exemption. The dealer has to strictly comply with the provision and cannot produce other evidence to prove that the sales to the registered dealers were for the purposes mentioned in the sub-clause. The dealer cannot get the exemption unless he furnishes the declaration in the prescribed form. " 1965 S. T. C. page 599 (S. T. O. Jodhpur vs. Mohatta) lays down that where a prayer is for quashing an assessment order, the High Court is necessarily confined to the facts as stated in the order or appearing on the record of the case.

The following rulings have to be taken into consideration also - 1966 (18) S. T. C. p. 17 (State of Orissa vs. Chapolia) lays down that the Assistant Commissioner was virtually in the same position as Sales Tax Officer when exercising powers under Sec. 23 (2) of the Orissa Sales Tax Act & the Act & Rules did not contemplate that a notice should be issued to the Sales Tax Officer if fresh evidence was received and utilised. 1962 S. T. C. p. 904 (Palaniappa Match Works vs. State of Kerala, lays down - The assessee had filed, along with his monthly returns under the Central Sales Tax Act, 1956, C forms which did not comply with the proviso to rule 11 (1) of the Central Sales Tax (Kerala) Rules, 1957, but no objection was raised by the Sales Tax Officer at that time. Before making the assessment order, the defect was pointed out by the Sales Tax Officer but the assessee urged that the forms were in order. In appeal the assessee specifically requested the Appellate Assistant Commissioner to grant him time to produce new declaration forms in accordance with the proviso to rule 11 (1) but this request was rejected by the officer. The request for an opportunity to produce new C forms was also not entertained by the Sales Tax Appellate Tribunal. The assessee produced new C forms in accordance with the proviso to R. 11 (1) before the High Court.

Held that this was a case in which the Appellate Assistant Commissioner and the Tribunal should have excused the delay in the production of C forms conforming to the proviso to rule 11 (1 ). " In 1965 R. R. D. page 214 (Mineral Development Syndicate vs. State of Rajasthan) it has been stated that the applicant failed to produce the form that, he claimed he could produce before the assessing authority and he made no attempt to produce these forms before the Dy. Commissioner, the inference being that he could produce the 'c' forms before the Dy. Commissioner.

I do not find that any clear rule has been enunciated about admissibility of 'c' forms in the appellate court. The concensus appears to be that if the appellate court after considering the matter properly decides that additional evidence should be allowed it can do so, though ordinarily additional evidence is not admissible before the appellate court. Hence the instant case has to be considered on its merits. I have to enter into the reasons for non-production of the C forms before the Assessing Authority. I find that in letter dated 23. 10. 63 the reason given for non-production of the C form before the Assessing Authority is that the Munim of the appellant had misplaced the same.

Now R. 17 (4) of the Central Sales Tax Rules clearly enjoins that every declaration form obtained from Assessing Authority by a registered dealer shall be kept by him in safe custody and he shall be personally responsible for the loss of Govt. revenue, if any, resulting directly or indirectly from the loss thereof. Hence it was negligence on the part of the dealer not to have kept the forms in safe custody so that they were lost and he is personally responsible for this loss.

In the circumstances I hold that the Dy. Commissioner should not have allowed the 'c' forms to be produced before him. His order is, therefore, set aside and the order of the Sales Tax Officer restored. The revision succeeds. .

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