- (1.) In all these writ petitions, the petitioners have challenged the assessment orders; re-assessment orders and notices under Section 21 (2) of the U.P. Trade Tax Act, for relevant assessment years, by the Trade Tax Department, on the transactions of job-work and goods-returned treated as sales under Section 6-Aof the Central Sales Tax, and in which the assessing authority or the reassessing authority has assessed or has proposed to assess the liability of Tax following the judgment in Ambica Steels Limited v. State ofU. P. and others, 200812 VST 216 (All) on the ground that since 'Form F' of the Central Sales Tax have not been produced, no other evidence is required to be considered for determining the tax liability on the sales/trade activities carried out by the petitioners.
(2.) In Ambica Steels (supra), a Division Bench of this Court has held as follows: "The provisions of Sections 6 and 6A of the Central Act came up for consideration in the case of Ashok Leyland Ltd. v. Sfate of T.N. and another, (2004) 3 SCC 1. Dealing with Sections 6 and 6Aof the Central Act, the Apex Court, in paragraph 43 of the report, has held as follows: "Section 6 of the Act provides for liability to tax on inter-State sales in terms whereof every dealer is liable to pay tax thereunder on sales effected by him in the course of inter-State trade or commerce subject to the exception contained in the proviso appended thereto. Such tax would be leviable notwithstanding the fact that no tax is leviable either on seller or the purchaser under the State tax laws of the appropriate State if that sale had taken place inside the State." In paragraph 44 of the report, the Apex Court has further held as under: "44. The liability to tax on inter-State sale as contained in Section 6 is expressly made subject to the other provisions contained in the Act. Sub- section (2) of Section 9, on the other hand, which is a procedural provision starts with the words "subject to the other provisions of this Act and the rules made thereunder". Section 6-A provides for exception as regard the burden of proof in the event a claim is made that transfer of goods had taken place otherwise than by way of sale. Indisputably, the burden would be on the dealer to show that the movement of goods had occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of his business or to his agent or principal, as the case may be. For the purpose of discharge of such burden of proof, the dealer is required to furnish to the assessing authority within the prescribed time a declaration duly filled and signed by the principal officer of the other place of business or his agent or principal. Such declaration would contain the prescribed particulars in the prescribed form obtained from the prescribed authority. Along with such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event, if it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale. Such declaration indisputably is to be filed in Form F. The said form is to be filled in triplicate. The prescribed authority of the transferee State supplies the said form. The original of the said form is to be filed with the transferor State and the duplicate thereof is to be filed before the authorities of the transferee State whereas the counterfoil is to be preserved by the person where the agent or principal of the place of business of the company is situated." In paragraph 47 of the report, it has further held as under: "47. By reason of sub-section (2) of Section 6-A, a legal fiction has been created for the purpose of the said Act to the effect that transaction has occasioned otherwise than as a result of sale." The Apex Court has, therefore, clearly laid down that,' under Section 6A of the Central Act, the burden would be on the dealer to show that movement of the goods had been occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of business or to the agent or principal, as the case may be, for which the dealer is required to furnish prescribed declaration form in the absence of which the transfer would be treated as sale. Admittedly, what the petitioners send or receive either for job work or as a return of goods from outside U.P., are goods within the Central Act. They are claiming that the goods have been transferred/received from ex-U.P. which are not sale and not liable to tax under Section 6 of the Central Act. The submission that the goods sent for job work or received for doing job work, do not amount to sale would depend upon the contract entered into between the parties and would be the subject matter of examination by the Assessing Authority. Even otherwise, under Section 2(g)(ii) of the Central Act, transfer of goods used in execution of work contract is treated to be a sale. If the petitioner claims that it is not liable to tax on the transfer of goods from U.P. to ex U.P., then it would have to discharge the burden placed upon it under Section 6A by filing declaration Form F. It would be immaterial whether the person to whom the goods are sent for or received after job work is a ba;/ee. As held by the Apex Court, under the statutory provision, the requirement is that if any person claims that he is not liable to pay tax on transfer of the goods from one State to another, he has to furnish declaration Form F. This would be applicable in a case of goods returned also. The statement of objects and reasons, referred to by Sri S.D. Singh, does not advance his case any further. Before parting with the case, we may, however, observe that as the petitioners have claimed that they are not liable to furnish declaration Form F in respect of the transaction in question and we have come to the conclusion that they are, in fact, liable. We direct the respective the Assessing Authorities to accept the declaration Form F of each of the petitioners if they file it within a period of three months from today and to grant exemption in accordance with law. In view of the foregoing discussions, we do not find any merit in these petitions and subject to the aforesaid observations, they are accordingly dismissed. All the interim orders are discharged. However, the parties shall bear their own costs."
(3.) The judgment in Ambica Steels Ltd. (supra) was challenged in Supreme Court in Civil Appeal No. 4970 of 2008 [M/s. Ambica Steels Ltd. v. State of U.P. and others]. The Supreme Court on 31.3.2009 passed an order as follows : "Shri Sorabjee, learned senior Counsel appearing on behalf of the assessee, on instructions, states that the appellant-assessee will submit itself to the re-assessment proceedings initiated vide Show Cause Notice (see Annexure P-2). He further states that the assessee will file Form "F" with the Authority concerned within ten weeks from today. On expiry of the period often weeks the Assessing Officer will take up re- assessment proceedings which will be completed within a period of three months, thereafter. At this stage, it may be mentioned that on the scope and applicability of Section 6A of the Central Sales Tax Act, 1956, there exists difference of opinion between the various Sales Tax Collectors in the country and therefore since the Appellant is now ready to file Form "F", we are directing the Assessing Officer not to impose penalty/interest, in the re-assessment proceedings as one time waiver. Needless to add that waiver of penalty and interest shall be admissible only on Form "F" being furnished by the assessee within the prescribed period. The appellant has deposited a sum of Rs. 1,00,00,000/- (one crore) on 27th December, 2008, under protest vide letter of even date. It is made clear that the said amount shall be refunded to the assessee herein within a period of two weeks after the completion of re-assessment proceedings, subject to adjustment, if any, in the Duty assessed. We are informed that certain State(s) within whose jurisdiction the transferee is located is/are not issuing "F" Forms. In such an eventuality it would be open to the Assessing Officer to complete re-assessment proceedings on its own merits after examining the transaction between the parties, keeping in mind the circumstance that the assessee is not in a position to obtain the "F" From no fault of his. According, this civil appeal is disposed of with no order as to costs.";