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Murli Dhar Dharampal v. The Sales Tax Officer, Agra Opposite Party.
Factual and Procedural Background
This is a writ petition brought under Article 220 of the Constitution. The petitioner seeks a writ in the nature of certiorari quashing an assessment order dated 30th December, 1963 which denied the petitioner the benefit under Section 8(1) of the Central Sales Tax Act ("C.S.T Act") for inter-State sales. The denial was based on the petitioner's failure to file declaration in form 'C' by 31st March, 1963, in accordance with a Circular of the Commissioner of Sales Tax, Uttar Pradesh dated 31st January, 1963.
Material facts (as set out in the opinion): the petitioner was a dealer in khal, oil, kirana and food grains and traded on his own account and on behalf of U.P and Ex-U.P principals. For assessment year 1959–1960 total sales were Rs. 21,94,410.78 np., of which interstate sales outside U.P were Rs. 16,71,212.98 np. The petitioner filed quarterly returns showing gross and net sales to Ex-U.P dealers as required by the C.S.T Act read with Rule 5 of the C.S.T (U.P) Rules, but did not attach the declarations in form 'C' with those returns as required by Rule 8(2). The reason given was that the 'C' forms had not been received from the Ex-U.P purchasers by that time.
On 21st December, 1963 the petitioner filed 235 'C' forms covering certain interstate sales (figures in the opinion: Rs. 16,1601-1681 np.). The Sales Tax Officer, by assessment order dated 30th December, 1963 (the opinion also refers to the assessment as being made on 30th December, 1962 in one paragraph and contains a later typographical reference to 30-12-1903), treated the late filing as outside the time prescribed by the Commissioner’s Circular (which extended acceptance only up to 31st March, 1963) and denied the benefit of Section 8(1), thereby taxing inter-State sales at 7% instead of 1%. The petitioner challenges that assessment order by this writ petition.
Legal Issues Presented
- Whether the Circular issued by the Commissioner of Sales Tax (extending the date for acceptance of form 'C' up to 31st March, 1963) has statutory force to operate as the time limit for furnishing form 'C'.
- Whether Rule 8(2) of the C.S.T (U.P) Rules (which requires the original portion of declarations in form 'C' to be attached to quarterly returns) is ultra vires Section 8(4) of the C.S.T Act by effectively imposing a time limit for furnishing the declaration.
- Whether Rule 8(2) is inconsistent with Rule 5-A of the C.S.T (U.P) Rules (which permits a dealer to furnish a revised return at any time before assessment is made).
- Whether the State Government (under Section 13(3) or sub-clause (e) of Section 13(4) of the C.S.T Act) has power to frame rules prescribing a time within which form 'C' must be produced.
Arguments of the Parties
Petitioner's Arguments
- The Commissioner’s Circular relied upon by the Sales Tax Officer has no statutory force to fix a time limit for acceptance of 'C' forms.
- Rule 8(2) of the C.S.T (U.P) Rules is ultra vires Section 8(4) of the C.S.T Act because Section 8(4) permits rules as to the "prescribed manner" of furnishing declarations but does not permit rules fixing the time within which declarations must be filed.
- Rule 8(2) is inconsistent with Rule 5-A of the C.S.T (U.P) Rules: Rule 8(2) requires attachment of 'C' forms to quarterly returns (filed within 30 days of quarter end) whereas Rule 5-A allows filing of a revised return at any time before assessment; thus time limits in R.8(2) conflict with R.5-A.
- The reasonableness of Rule 8(2) is challenged given practical difficulties in obtaining 'C' forms from purchasers outside the State, and reliance is placed on the Full Bench decision of the Kerala High Court in Abraham v. Sales Tax Officer (1964) (Full Bench), which held that "prescribed manner" does not include a time limit and that 'C' forms filed before assessment must be accepted.
Respondent's (Junior Standing Counsel) Arguments
- The Kerala Full Bench decision is distinguishable because, in that case, the notice issued was under clause (g) of sub-section (4) of Section 13 and not under clause (e), a distinction said to be material to rule-making powers.
- The general rule-making power under Section 13(3) of the C.S.T Act was not considered by the Kerala Full Bench and, read with Section 13(4), would permit the State to frame rules specifying conditions (including time) subject to which forms of declaration may be obtained.
- Reliance was placed on an earlier decision (Writ Petition No. 237 of 1963, dated 28-1-1964 (All)) under Section 7-E of the U.P. Sales Tax Act, where the Court had held that the State could prescribe a time limit as part of the "manner" of imposing conditions for composition; by analogy, the State can prescribe a time limit for 'C' forms.
- Reliance was also placed on Supreme Court decisions (Chandrakant Krisbnarao v. Jasjit Singh; Afzal Ullah v. State of U.P.; State of Kerala v. M. Appukutty) for the proposition that Section 13(3) empowers the State Government to make rules specifying a time within which 'C' forms are required to be produced.
- The Department also relied upon a Madras Sales Tax decision (referred to as A.I.R. 1903 S.C. 790 in the opinion) where a rule fixing a period for reassessment was upheld under a specific rule-making power in that Act — urged as precedent for upholding time-limiting rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abraham v. Sales Tax Officer, (1964) 15 S.T.C. 110 : AIR 1964 Ker 131 (Full Bench) | The Full Bench held that the words "prescribed manner" in the corresponding provision do not include a time element; a rule fixing a time limit for filing 'C' forms went beyond the power conferred by the provision and therefore 'C' forms filed before assessment must be accepted. | The Court agreed with this Full Bench interpretation and treated it as directly in point; it held that State cannot, by rule, fix a rigid time limit for filing form 'C' under Section 8(4) and relied on this reasoning to quash the assessment. |
| Aoraman v. Herniman / "Acramao's case", (1851) 16 Q.B. 999 (observations of Lord Campbell, C.J.) | The observation quoted: the words "in manner and form" refer only to the mode in which something is to be done, and not to the thing to be done or the time for doing it — used to support the view that "manner" does not include "time". | The Full Bench (and by adoption this Court) relied on that distinction to interpret "prescribed manner" as not authorizing a time limit; the opinion adopts that interpretive principle in preferring the Full Bench view. |
| Writ Petition No. 237 of 1963, Dated 28-1-1964 (All) | Decision under Section 7-E of the U.P. Sales Tax Act holding that the government could prescribe the "manner" including a period within which an application for composition must be made (the manner of determining the amount included the time for application). | The Court distinguished this decision: it was held to be based on different statutory language (Section 7-E) that expressly gave power to impose conditions including time, and thus it was not authority for permitting the State to lay down a time limit under Section 8(4) of the C.S.T Act. |
| Chandrakant Krisbnarao v. Jasjit Singh, AIR 1962 S.C. 204 | Cited for the proposition that Section 13(3) (a general rule-making provision) could enable a State Government to frame rules specifying time limits. | The Court found the Supreme Court decisions relied upon to be decisions on particular statutory provisions and facts; it held they did not support the Department's contention that Section 13(3) could be used to frame a rule inconsistent with Section 8(4). |
| Afzal Ullah v. State of Uttar Pradesh, AIR 1964 S.C. 264 | Cited for the same general proposition concerning the scope of Section 13(3) to enable time-prescribing rules. | The Court regarded this decision as inapposite because it dealt with particular statutory provisions and factual contexts different from the present case, and thus it did not persuade the Court to uphold R.8(2). |
| State of Kerala v. M. Appukutty, AIR 1963 S.C. 790 | Also relied upon to support the proposition that rule-making power can include times in some statutory contexts. | The opinion treats this decision as one of the Supreme Court authorities whose relevance is limited to the special provisions considered in those cases and therefore not decisive in the present context. |
| Madras Sales Tax Act decision (referred to in the opinion as A.I.R. 1903 S.C. 790) | Upheld, under that Act’s rule-making power, a rule (R.17) permitting reassessment within a period of three years; used to show that where statute expressly authorises time-limits in rule-making, such rules can be intra vires. | The Court held this case to be of little or no avail to the Department: it was decided under a different statute and specific rule-making provision (Section 19) that explicitly authorised the fixing of time for reassessment, and therefore it could not justify R.8(2) which was inconsistent with Section 8(4) of the C.S.T Act. |
Court's Reasoning and Analysis
The Court's analysis proceeded in the following steps (as stated in the opinion):
- Identification of the precise statutory words to be interpreted: the Court focused on the phrase "in the prescribed manner" in Section 8(4) of the C.S.T Act and asked whether that phrase authorises a rule-making power to prescribe a time limit for furnishing declaration forms in form 'C'.
- Adoption of the interpretive principle (as applied by the Kerala Full Bench and earlier authorities) that "manner" or "prescribed manner" refers to the mode or method of doing something, not the time within which it is to be done. The Court explicitly agreed with the Kerala Full Bench's construction that the words do not carry a time element.
- Examination of the consequences of allowing a rule like R.8(2) to stand: R.8(2) effectively imposed a rigid and "very drastic penalty" (loss of benefit under Section 8(1)) if the form 'C' was not attached to quarterly returns filed within 30 days of the quarter end. The Court considered whether the rule-making authority had power to impose such a penalty by prescribing a time.
- Rejection of the Department's reliance on Section 13(3) and sub-clause (e) of Section 13(4): the Court held the State Government's rule-making power under Section 13(3) is limited to rules not inconsistent with the Act; if a time-limit rule is inconsistent with Section 8(4) and the object of Section 8(1) then it cannot be valid. Sub-clause (e) permits rules about the authority from whom, and the conditions subject to which, a form may be obtained and the manner of custody and use of such forms, but it does not give power to fix time limits for furnishing declarations.
- Distinction drawn between this case and other authorities relied upon by the Department: decisions under other statutory provisions (for example Section 7-E of the U.P Sales Tax Act or provisions in the Madras Act) were found to be based on distinct statutory language that expressly authorised time-related conditions; they therefore could not be read as authority for a time-fixing power under Section 8(4) of the C.S.T Act.
- Consideration of consistency with Rule 5-A: the Court pointed out that Rule 8(2)'s rigid time limit is inconsistent with Rule 5-A, which allows a dealer to file a revised return at any time before assessment is made; if revised returns can be filed before assessment, then declarations in form 'C' ought to be attachable to such revised returns, undermining the need for a rigid 30-day-from-quarter limit.
- Practical considerations and safeguards: the Court acknowledged the risk of manipulation or bogus 'C' forms but observed that such risks can be addressed through appropriate departmental investigation and penalties; those practical difficulties do not justify invalidating the statutory interpretation that forbids R.8(2)'s time limit.
- Alternative remedies and adequacy: because the challenge is to the vires (validity) of the rule itself, the Court held that alternative remedies (appeal/revision) were not adequate; reliance on the Kerala Full Bench decision supported the view that judicial review was appropriate and that the assessment should be quashed where 'C' forms were filed before assessment was completed.
Holding and Implications
Holding: The writ in the nature of certiorari is issued quashing the assessment order dated 30-12-1903 (as described in the opinion). The Sales Tax Officer is directed to make the assessment afresh in accordance with law. The writ petition is allowed with costs and the petition is accordingly permitted (petition allowed).
Implications and direct effects:
- The immediate effect is that the impugned assessment order is quashed and the Sales Tax Officer must reassess in accordance with law, taking into account that the petitioner had filed the 'C' forms before the assessment was completed.
- The petitioner will not be deprived of the benefit conferred by Section 8(1) of the C.S.T Act where valid 'C' forms were filed before completion of assessment; the Court found that Rule 8(2) could not validly operate to deprive the petitioner of that benefit by imposing a rigid time limit inconsistent with the statute and Rule 5-A.
- The Court did not treat the Department’s cited authorities as sufficient to uphold R.8(2); it followed the reasoning of the Kerala Full Bench. The opinion does not purport to set out or frame a new binding precedent beyond the decision in this matter; the direct consequence stated in the opinion is the quashing of the assessment and remand for fresh assessment in accordance with law. (The counsel for the petitioner undertook not to raise any question of the bar of limitation to the making of such an assessment.)
Note: This summary is strictly confined to material and statements contained in the provided opinion. No facts or legal conclusions have been added beyond those appearing in the opinion.
1. This is a writ petition under Article 220 of the Constitution. The prayer is for the issue of a writ in the nature of certiorari quashing the assessment order dated, 30th of December, 1963 whereby the benefit under Section 8(1) of the Central Sales Tax Act (hereinafter referred to as C.S.T Act) in respect of the inter-State sales was denied because of the petitioner's failure to file the declaration in form ‘C’ by the 31st March 1963, in accordance with the Circular issued by the Commissioner Sales Tax, Uttar Pradesh, dated 31st January 1963. The facts leading up to this petition lie in a very narrow compass. They are: that the petitioner was a dealer in Khal, Oil, Kirana and Food grains and carried on business on his own account as well as on behalf of U.P and Ex. U.P Principals. In the relevant assessment year 1959-1960, the total sales were of Rs. 21,94,410.78 np. out of which the sales outside U.P were of Rs. 16,7,212-98 np. The petitioner filed all the quarterly returns showing his gross sales and net sales made to Ex. U.P dealers as required by the C.S.T Act read with Rule 5 of the Central Sales Tax (U.P) Rules (hereinafter referred to as C.S.T (U.P) Rules); but did not file the declaration in form ‘C’ along with the returns as required by Rule 8(2) of the C.S.T (U.P) Rules. The reason given for the failure to attach form ‘C’ with the quarterly returns was that those forms had not been received from the Ex-U.P dealers by that time 235 ‘C’ forms however, were admittedly filed by the petitioner on 21-12-1963 covering the interstate Ex-U.P sales of Rs. 16,1601-1681 np.
2. The assessment was made on the 30th December 1962. In regaid to the remaining sales of Rs. 5811.17 np no form ‘C’ was submitted as those sales were made to unregistered dealers. The Sales Tax Officer, however, by his assessment order dated, 30th December, 1963 considered that as the ‘C’ forms were not filed within the time prescribed, which according to him meant the Circular of the Commissioner, whereby the time for acceptance of ‘C’ forms was extended upto the 31st March, 1963. As the ‘C’ forms were filed on the 21st December, 1963, which was after the date prescribed in the said Circular the petitioner was denied the benefit of the provisions of Section 8(1) of the C.S.T Act and was taxed on inter State sales to registered dealers at 7 per cent instead of 1 per cent which otherwise would have been levied. The writ petition challenges the assessment order.
3. The main contention of the learned counsel for the petitioner is that the Circular issued by the Commissioner of Sales Tax, which the Sales Tax Officer considered to prescribe the time limit for accepting ‘C’ forms has no statutory force and even Rule 8(2) of the C.S.T (U.P) Rules is ultra vires Section 8(4) of the C.S.T Act. It was further contended that R. 8(2) of the C.S.T (U.P) Rules is inconsistent with R. 5A of the same Rules. The former requires the ‘C’ forms to be attached to the quarterly returns, which have to be filed within a month of the expiry of the particular quarter, whereas R. 5A requires the same to be filed at any time before the assessment is completed. The reasonability of Rule 8(2) of the C.S.T (U.P) Rules is also challenged. Reliance is placed on a Full Bench decision of the Kerala High Court in Abraham v. Sales Tax Officer, (1964) 15 S.T.C 110 : (AIR 1964 Ker 131 (FB)).
4. The Kerala Full Bench was concerned with the vires of the third proviso to Rule 8 of the Central Sales Tax (Kerala) Rules as it then stood, which provided on 2nd May, 1960, for the extension of time for filing ‘C’ forms for submission up to the 16th of February 1961. The ‘C’ forms in that case were submitted on the 8th March, 1961 and were, therefore, not entertained by the Sales Tax Officer. That dealer thus was deprived of the concession conferred by Section 8(1) of the C.S.T Act by the Sales Tax Officer. The appeal and revision having proved infructuous, the dealer without going in reference appears to have moved the High Court of Kerala, under Article 226 of the Constitution, praying for the quashing of the assessment, appellate and revisional orders on the ground that Rule 6 of the C.S.T (Kerala) Rules and the provisions thereto, in so far as it laid down a time limit went beyond Section 8(4) of the C.S.T Act which only permitted the State to make Rules as to the “prescribed manner” of making of such a declaration and there is no mandate in S. 8(4) which would permit the State to lay down a time limit as had been attempted to be done in Rule 6. Reference was made to a decision of the House of Lords and the observations of Lord Campbell, C.J, in Aoraman v. Herniman, (1851) 16 Q.B 999 at p. 1003, where the words ‘in manner and form’ were held to refer only to the mode in which the thing is to be done, and not to the thing which is to be done or the time for doing it. It was also pointed out in the Full Bench case that Section 13(4)(g) of the C.S.T Act, indicated that the Legislature was conscious of the two different concepts as that of “the time within which” and “the manner in which”, as both these expressions were used in sub-cl. (g) to sub-s. (4) of Section 23 of the C.S.T Act. The Full Bench further distinguished the Madras case where Acramao's case, (1851) 16 Q.B 999 was referred to by saying that the wards ‘in the manner prescribed’ was assumed as including the “time within which” the ‘C’ form was to be filed. The Full Bench, therefore, held that ‘in the manner prescribed’ in Section 8(4) of C.S r. Act, does not take in the time element and as such Rule 6 of the C.S.T (Kerala) Rules went beyond Section 8(4) of the C.S.T Act and as ‘C’ forms were filed before the assessment was completed they had to be accepted. The assessment, appellate and revisional orders which had deprived the assessee of the benefit of Section 8(1) of the C.S.T Act, were therefore directed to be quashed. Apart from the Full Bench of the Kerala High Court the learned counsel for the petitioner added that in the General Clauses Act, Central as well as that of U.P by S. 22, made a clear distinction between time ‘when’ or the ‘place where’ or the ‘manner in which’, anything is to be done under the Act. The legislature would not have used these several expressions in the General Clauses Act unless they meant different things and this clearly indicated that each one of them intended to cover a different situation.
5. The learned Junior Standing Counsel attempted to distinguish the aforesaid Full Bench decision on various grounds; (1) that in the Kerala decision the notice issued was under sub-cl. (g) of sub-s. (4) of S. 13 and not under cl. (e) of the C.S.T Act, which according to him had given specific and general powers to the prescribed authority to make rules, to lay down conditions subject to which “any form of declaration prescribed under sub-cl. (4) of S. 8 may be obtained”. (2) the general rule making power under Section 13(3) of the C.S.T Act, had also not been considered. Reliance was also placed on a decision of this Court in Writ Petn. No. 237 of 1963, D/- 28-1-1964 (All), where the question was whether under Section 7-E of the U.P Sales Tax Act, a time limit could be fixed by the State Government for making of an application for composition? It was there observed:
“Section 7-E(2) expressly empoweres the State Government to notify the manner in which the amount by way of composition shall be determined and the manner in which it shall be paid. The manner in which the amount shall be determined includes the procedure in accordance with which the amount must be computed and this procedure would include the making of an application within a specified period.”
6. Reliance was also placed on three Supreme Court decisions in Chandrakant Krisbnarao v. Jasjit Singh, AIR 1962 S.C 204, Afzal Ullah v. State of Uttar Pradesh, AIR 1964 S.C 264 and State Of Kerala v. M. Appukutty ., AIR 1963 S.C 790, for the proposition that Section 13(3) of the C.S.T Act which is a general provision for making rules, would enable the State Government to frame a rule specifying a time within which the ‘C’ forms were required to be produced.
7. In order to appreciate the contentions it is necessary to set out the relevant provisions of C.S.T Act and C.S.T (U.P) Rules:—
C.S.T Act:
“S. 8(1) Every dealer who in the course of interstate trade or commerce………
(a) sells to the Government any goods; or
(b) sells to a registered dealer other than the Government goods of the description referred to in sub-s. (3); shall be liable to pay tax under this Act, which shall be one per cent of his turn-over.
(4) The provision of sub-s. (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…….”
8. Section 13(3). The State Government may make rules, not inconsistent with the provisions of this Act and the rules made under sub-s. (1), to carry out the purposes of this Act.
(4) In particular and without prejudice to the powers conferred by sub-s. (3), the State Government may make rules for all or any of the following purposes namely…….
(e) The authority from whom, the conditions subject to payment of which any form of declaration prescribed under sub-s. (4) of S. 8 may be obtained, the manner in which the form shall be kept in custody and records relating thereto maintained, the manner in which any such form may be used and any such declaration may be furnished.”
C.S.T (U.P) Rules:—
“5. Every dealer liable to pay tax under the Act shall furnish a return of his turnover in respect of sales made by him in the course of inter-State trade or commerce in the manner prescribed for return of turnover in R. 41 of the U.P Sales Tax (Temporary) Rules, 1948, in form 1,…….
5-A. If any dealer having furnished a return of his turnover in respect of sales made by him in the course of inter-State trade or commerce in the manner prescribed in R. 5, discovers any omission or wrong statement therein, he may furnish a revised return at any time before the assessment is made.”
9. Rule 8(2). “A registered dealer” who claims to have made a sale to another registered dealer shall, in respect of such claim, attach to his return in Form 1 the portion marked “Original” of the Declarations received by him from the purchasing dealer.”.
10. It is by virtue of R. 5 read with R. 8(2) of the C.S.T (U.P) Rules and R. 41 of the U.P Sales Tax (Temporary) Rules, 1948 that the declaration in form ‘C’ has to be attached to the quarterly returns which are required to be filed within 30 days of the end of each quarter. In other words, the impugned rule attempted to lay down that if the forms are not attached with the quarterly returns the petitioner will lose the benefit of Section 8(1) of the C.S.T Act. Now, that is indeed a very drastic penalty to impose and the question to be considered is whether the rule-making authority has the necessary power to do so under Section 8(4) of the C.S.T Act. If the latter section does not authorise the State Government to make a rule filing a time limit and intended that the normal time limit which prevails for the making of an assessment would also apply to the production of ‘C’ forms, there will be no alternative but to hold that R. 8(2) was repugnant to Section 8(4) of the C.S.T Act.
11. The words in S. 8(4) which require consideration are “In the prescribed manner.”
12. Now what could be prescribed is only the mode in which the ‘C’ forms were required to be produced and not the time for filing such forms. I am inclined to agree, with respect, with the interpretation placed on these words by the Full Bench of the Kerala High Court, when it holds that the words ‘prescribed manner’ do not give the State Government any authority to fix a time limit. If may be open to the State Government under S. 13(5) to make rules for providing a penalty for breach of rules but it is not possible-to deprive the holder of the benefit provided under Section 8 (I) of the C.S.T Act by fixing a rigid rule of limitation within which the ‘C’ forms must be produced. Section 8(4) does not give the rule-making authority the necessary power to do so.
13. The case relied upon by the learned Junior Standing Counsel, is a decision under Section 7-E of the U.P Sales Tax Act and is distinguishable, as there the words used in sub-cl. (1) of S. 7, clearly gave the power to impose conditions in respect of an application for composition. Section 13(3) of the C.S.T Act, again, is of no avail to the Department as the opening words made it abundantly clear that the State Government can only make such rules as are not inconsistent with the provisions of the Act and if the laying down of a time limit is inconsistent with the provisions of sub-s. (4) of Section 8 of the C.S.T Act and the object behind Section 8(1) of that Act, then such a rule cannot possibly be framed. Similarly, sub-cl. (e) to sub-s. (4) of S. 13 would not give any power to the prescribed authority to lay down conditions of time within which the declaration forms must be furnished, other than the time prescribed for the making of an assessment. That sub-clause would only authorise the State Government to lay down conditions subject to payment of which any form of declaration prescribed under sub-s. (4) of S. 8 may be obtained, the manner in which the form may be kept in custody and the records relating thereto maintained, the manner in which any form may be used and any such declaration may be furnished. This sub-clause gives no power to fix a time limit for the filing of the declaration in ‘C’ Form.
14. The decisions of the Supreme Court relied upon are also decisions given on the particular provisions of these particular Acts, which came up for consideration in those cases. Greatest reliance was placed by the Junior Standing Counsel on A.I.R 1903 S.C 790. That was a case where the validity of the Madras Sales Tax Act was challenged. The Rule provided for re-assessment and fixing of the time limit of 3 years within which re assessment proceedings could be taken. The contention was that as the Act itself did not make any provision for re-assessment no rule could be framed which would enable re-assessment proceedings to be taken. This contention was repelled by the Supreme Court observing:
“Section 19 gives power to the Government to make rules and the relevant provisions of that S. 19(1) and 19(2)(f) are as under:
(1) The State Government may make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of foregoing power such rules may provide for
(f) the assessment to tax under this Act of any turnover which has escaped assessment and the period within which such assessment may be made, not exceeding three years.”
15. Under the rule making power conferred by S. 19, R. 17 was framed permitting re-assessment within a period of three years. In those circumstances R. 17 of the Madras General Sales Tax Rules was held by the Supreme Court to be intra vires. This case therefore is of little or no avail to the Department and the position is not any better in respect of the other two cases relied upon which as already observed were decisions on their own peculiar facts and special provisions of law.
16. Apart from the vires of the impugned R. 8, it would also suffer from the vice of inconsistency with R. 5-A of the C.S.T (U.P) Rules. The laying down of a rigid time limit under R. 8(2), when a right is given to a dealer to file a revised return at any time before the assessment is completed would serve no useful purpose. If a revised return can be filed showing that there was some omission in the turnover it reasonably must follow that the declaration in ‘C’ form, can also be attached to the revised return. If that can be done there is no reason why a rigid time limit of 30 days from the end of every quarter should be fixed for filing of the ‘C’ forms. There are, undoubtedly practical difficulties in the way of dealers in filing ‘C’ forms as that is something which is to be obtained from the purchasers in respect of inter. State sales and where the purchasers obviously, reside outside the State. The dealer is inevitably, to a considerable extent, at the mercy of such purchasers. It is true that if a rigid time limit is not fixed there is the danger of manipulation of ‘C’ Forms, as suggested by the Junior Standing Counsel. But such danger can always be overcome by a proper investigation into the ‘C’ forms furnished. If bogus ‘C’ forms are furnished the arm of the Sales Tax Department is certainly long enough to catch and punish such a dealer.
17. It only remains to consider, the question of an alternative remedy. It has repeatedly been laid down by the Supreme Court that the existence of an alternative remedy is not an absolute bar. In the present case as the vires of the rule is under challenge it is not possible to consider the alternative remedy as an equally adequate or efficacious remedy. The Kerala Full Bench decision is a case directly in point and if in that case not only the assessment but also the appellate and revisional orders could have been quashed, there is no reason why the present assessment order should not be quashed as the ‘C’ forms were admittedly filed before the assessment was completed and there would be no justification in depriving the petitioner of the benefit of Section 8(4) of the C.S.T Act and subject him to tax at seven times the amount provided under Section 8(1) of the C.S.T Act.
18. For the reasons given above a writ in the nature of certiorari will issue quashing the assessment order dated, 30-12-1903, and the Sales Tax Officer is directed to make the assessment afresh in accordance with law. The Counsel for the petitioner has undertaken not to raise any question of the bar of limitation to the making of such an assessment. The writ petition is accordingly allowed with costs.
CI/AKJ/V.B.B
19. Petition allowed.
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