2025 (5) TMI 1361 - HC - VAT / Sales Tax

HC sets aside tribunal order on Section 3B UP Trade Tax Act demand for false certificates

M/s Ambey Processors Thru Its Director Versus The Commissioner Commercial Tax U.P. Lucknow

The HC set aside the Commercial Tax Tribunal's order regarding demand under Section 3B of the UP Trade Tax Act for issuing false certificates. The court ... Issuance of Form III B without mentioning the rate of tax - no column prescribed for mentioning the rate of tax to be leviable - Failure to adhere Binding nature of circulars issued by the Commissioners on the authorities - variance of rate of tax - Liability on issuing false certificates - demand created under Section 3B of the UP Trade Tax Act - duly registered dealer and is entitled for purchase of goods as prescribed under Section 4 B of the Act - HELD THAT:- On bare reading of the section 3 B, it shows that on issuing of false or wrong certificates to another person by reasons of which tax leviable under the Act on the transaction of purchase or sale made with or by such other person ceases to be leviable or becomes leviable at a concessional rate, shall be liable to pay on such transaction an amount which would have been payable as tax on such transaction, had such certificate or declaration not been issued. In other words, if the registered dealer in a particular transaction issued a certificate on the intent on which no tax is levied or concessional tax was levied then for the balance amount, if found to be paid, can be realized on such certificate or declaration. The word ‘such certificate or declaration’ clearly shows that every certificate or declaration has to be looked into independently and for each default, if any, separate order has to be passed. For the complete assessment year, no common order can be passed. The legislature in its wisdom has not used the word ‘certificates or declarations’ for such transaction to which only one order can be passed. Further the record shows that the circular dated 15.4.1986 and 24.4.1987 have not given due weightage though it was binding upon the authorities. Thus, the matter requires reconsideration by the assessing authority and for that purpose, the impugned order passed by the Commercial Tax Tribunal is hereby set aside. The matter is remanded to the assessing authority, who shall decide the case, de novo, in accordance with law. The revisionist is directed to submit a certified copy of this order within ten days from today before the assessing authority and on receipt of the same, notice will be issued to the revisionist within a week thereafter. Accordingly, the revision is allowed. The questions of law are answered accordingly. The core legal questions considered by the Court were: (1) whether the Tribunal was legally justified in ignoring that the circulars issued by the Commissioner are binding on the authorities; and (2) whether the Tribunal was justified in affirming the demand created under Section 3B of the UP Trade Tax Act without establishing that the applicant had submitted false or wrong Form III B declarations.Regarding the first issue, the legal framework includes the binding nature of circulars issued by the Commissioner of Commercial Tax, which provide directions to assessing authorities, including the issuance of different color shades of Form III B for concessional and full tax rates. The revisionist relied on these circulars, asserting that the assessing authority failed to comply with them in letter and spirit, particularly in issuing Form III B without specifying the rate of tax. The Court noted that the circulars are binding on the department and ought to have been followed. The assessing authority's failure to adhere to these circulars was a significant point of contention.On the second issue, the Court examined Section 3B of the UP Trade Tax Act, which imposes liability on a person issuing false or wrong certificates or declarations that result in tax ceasing to be leviable or becoming leviable at a concessional rate. The provision requires that before taking action, the person must be given an opportunity of being heard. The Court emphasized that each certificate or declaration must be independently examined, and liability cannot be imposed for an entire assessment year without pinpointing specific forms or transactions that involved false or wrong declarations. The Tribunal's affirmation of demand under Section 3B without establishing that the revisionist submitted false or wrong Form III B was found to be legally unsustainable.The Court analyzed the relevant statutory provisions and procedural requirements, including Rule 25B of the UP Trade Tax Rules prescribing Form III B. It was observed that the Form III B does not contain a column for specifying the tax rate, and therefore, the revisionist could not be held liable for the absence of such information. The Court further noted that the assessing authority's order for the entire assessment year lacked specificity in identifying the forms allegedly used to evade or short pay tax, which is contrary to the legislative intent reflected in Section 3B.The Court also considered the arguments of the State, which contended that the onus was on the revisionist to inform the assessing authority of the purpose for which Form III B was obtained (concessional or full rate). The State argued that the dealer's intent cannot be tested at the time of issue of the form and that the assessing authority issues the form at the dealer's request. However, the Court found this argument insufficient to shift the burden onto the assessing authority or to justify the demand without proper findings of falsehood or wrong declarations.In light of these considerations, the Court concluded that the Tribunal erred in ignoring the binding circulars and in affirming the demand under Section 3B without requisite findings. The Court set aside the Tribunal's order and remanded the matter to the assessing authority for de novo consideration in accordance with law, directing strict compliance with the binding circulars and statutory provisions. The revisionist was to be given an opportunity to respond, and the assessing authority was to decide the matter within a stipulated timeframe. Any amounts deposited pending the fresh order were to be subject to the outcome of the reassessment.Significant holdings include the Court's clear statement that 'once the Act / Rule, does not specifically provide for mentioning the rate of tax in Form III B, the revisionist cannot be held responsible for issuing Form III B.' Further, the Court emphasized that 'every certificate or declaration has to be looked into independently and for each default, if any, separate order has to be passed,' rejecting the validity of a blanket order covering an entire assessment year. The Court underscored the binding nature of the Commissioner's circulars and the necessity for assessing authorities to comply with them.In conclusion, the Court answered the substantial questions of law by holding that the Tribunal was not justified in ignoring the binding circulars and in affirming the demand under Section 3B without establishing false or wrong Form III B declarations. The matter was remanded for fresh adjudication in conformity with the legal framework and procedural safeguards.