TaxTMI 
TaxTMI 
2004 (1) TMI 365
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....Ramasesh, R.S. Hegde, Chandra Prakash, Devish P., Ms. Savithri Pandey, P.P. Singh, B.B. Singh, M.N. Shroff, G. Prakash, N. Ganapathy, K. Ram Kumar, V. Krishnamurthy and V. Ramasubramaniam for the parties. -------------------------------------------------- The judgment of the Court was delivered by S.B. SINHA, J.-Leave granted in S.L.P. (Civil) No. 5579 of 2001. 2.. Interpretation of section 6-A of the Central Sales Tax Act, 1956 is involved in these appeals and the writ petition. The appeals arise out of judgments and orders dated March 12, 1999 passed by the Tamil Nadu Sales Tax Appellate Tribunal in T.A. Nos. 353, 456 and 457 of 1997 and 47 of 1998; dated November 13, 2000 in S.T.A. No. 459 of 1999; dated November 14, 1997 in Appeal No. 383 of 1996; and dated December 2, 1997 in Tax Case (Revision) No. 1096 of 1990 passed by the High Court of Madras. 3.. The writ petition under article 32 was filed by the petitioner, inter alia, for declaring that section 9(2) of the Central Sales Tax Act, 1956 designating the authorities of the movement State to adjudicate upon the situs of sales and character of a transaction in the course of an inter-State sale....
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....wed transfer of stocks of the motor vehicle chassis and other automobile parts to the branches stating: "The dealers have got 26 branch sales depots in other States. They have despatched their products-chassis, spare parts, etc., to their own sales depots in other States for sales and the goods involved in the stock transfer have moved from Tamil Nadu to other State as 'stock transfer', i.e., the movement was occasioned by reason of branch transfer and not by reason of sale. The despatches are supported by stock transfer invoices, transport details and form F. These records have been verified with the exemption claimed." 5.. An order of assessment for the year 1987-88 dated August 28, 1991 was passed finding: "The dealers have filed detailed statement of stock transfer of vehicles to their outside State regional sales offices and spares to their warehouses. The statement was verified in detail with reference to form 'F' declaration filed by them and despatching documents. The dealers have also filed completed assessment orders of their regional sales offices in other States. Their claim was examined in length and found to be in order. The form 'F' filed by them are accepte....
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....completed under the respective State law. Upholding the jurisdiction of Tamil Nadu authorities to reopen an assessment completed despite acceptance of declaration in form F, the Madras High Court by a judgment and order dated June 13, 1996 dismissed the said writ application, inter alia, holding that they had no jurisdiction to grant any relief. Thereafter the reassessment was completed and penalty was imposed. JUDGMENT OF THIS COURT: The matter came up for consideration before this Court in Ashok Leyland v. Union of India since reported in (1997) 9 SCC 10 [1997] 105 STC 152 (SC). at the instance of the appellant herein; and upon referring to the decisions rendered in Balabhagas Hulaschand v. State of Orissa See [1976] 37 STC 207 (SC). (1976) 2 SCC 44, Izhar Ahmad Khan v. Union of India [1962] Supp 3 SCR 235, Sodhi Transport Co. v. State of U.P. See [1986] 62 STC 381 (SC). (1986) 2 SCC 486 and several others, this Court by a judgment dated February 20, 1997 See [1997] 105 STC 152 (SC). held: (a) Section 6A does not create conclusive presumption as contended on behalf of the assessee. (b) An order of assessing authority accepting form F, whether passed during the assessm....
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....he other State Governments. This Court further noticed the contention of the appellant that the attitude adopted by the sales tax authorities in Tamil Nadu is not conducive of judicial conduct as they are predetermined to treat the transactions as inter-State sale and levy tax thereon ignoring the fact and correct legal situation, but did not express any opinion on the correctness or otherwise of the said submissions. It, however, felt the necessity of evolving a Central mechanism which would decide once for all questions of this nature. Elucidating certain instances, it was opined that although the assessment proceedings before certain States had become final, this Court in exercise of its jurisdiction under article 32 or 136 or 142 of the Constitution of India may issue appropriate directions, whereupon the following directions were issued: "23...........Let the Tamil Nadu assessing authorities first decide the matters before them. Thereafter, if the orders are against the appellant, we permit the appellant to file the appeal(s) directly before the Tribunal. If the Tribunal decides in favour of the appellant, no further question would arise. But if it decides against the appel....
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....andi to resolve this conundrum. We, therefore, request the learned Attorney-General to appear for respondent No. 2, Union of India, for assisting the court in these proceedings. The office may obtain orders from honourable the Chief Justice for placing these matters before an appropriate Bench of three learned Judges." 11.. Notices, pursuant to the said directions, were issued to the concerned States. Thereafter, even for the subsequent periods also the Appellate Tribunal upheld the order passed in Indicarb Limited which are also the subject-matter of challenge before us. PARLIAMENTARY INTERVENTION: We may notice that having regard to the several orders passed in the connected matter, the Parliament enacted that Central Sales Tax (Amendment) Act, 2001 and Finance Act, 2002. Suggestions, as regards certain provisions of the said Acts, however, having been mooted at the Bar, the matter is said to be receiving fresh consideration at the hands of the Central Government. 12.. It is also not in dispute that by enacting the Central Sales Tax (Amendment) Act, 2001 by Central Act 20 of 2002, which came into force from May 11, 2002, section 2(g) of the Act has been substituted....
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....ontend; statutory authorities created under the State Act could not exercise any jurisdiction contrary to or inconsistent therewith. 14.. The learned counsel would submit that the word "determination" signifies expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law. 15.. Mr. Parasaran would contend that in terms of section 6-A of the Central Act, as it then stood, the assessee had two options, namely, to file form F or subjected himself to an assessment proceeding. If the assessee opts to file a declaration in terms of form F, whereupon an order is passed holding an enquiry by the assessing authority; the same being conclusive in nature, no proceeding for reopening the same would be permissible in law. Reliance in this connection has been placed on Izhar Ahmad Khan [1962] Supp 3 SCR 235, Balabhagas Hulaschand See [1976] 37 STC 207 (SC). (1976) 2 SCC 44 and Mahant Dharam Das v. State of Punjab [1975] 3 SCR 160. 16.. The learned counsel would argue that the expressions "for the purpose of the Act" would imply "for the purpose of all the provisions of the Act" and, thus, once an order is passed under sub- sectio....
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....ee [1997] 105 STC 152 (SC). (1997) 9 SCC 10 and, thus, binds the parties herein. The learned counsel would contend that section 6-A of the Act cannot be given a higher status than the State Act or section 9(2) of the Central Act inasmuch as an order passed in terms of sub-section (2) thereof is passed merely in aid of assessment and in that view of the matter if an order of assessment can be appealed against or subjected to a reopening proceeding, the same legal provisions must be held to be applicable also in relation to an order passed under sub-section (2) of section 6-A. 21.. Mr. Ganguli has drawn our attention to the findings of the Tribunal to the effect that raids were conducted by the authorities and that the appellant herein had escaped proper assessment by taking recourse to suppressio veri and suggestio falsi. According to the learned counsel, as fresh materials had been discovered, a reasoned show cause notice was issued and pursuant thereto and in furtherance thereof, the impugned orders had been passed, and in that view of the matter no case has been made out for interference therewith. STATUTORY PROVISIONS: "Sale" has been defined in the Tamil Nadu General ....
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.... of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five years from the date of order of the final assessment by the assessing authority determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment. (b) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at any time within period of five years from the date of order of the final assessment by the assessing authority reassess the tax due after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such reassessment." 24.. In case of wilful non-disclosure of assessable turnover by the dealer while passing an order of reassessment, penalty can also be imposed. Sub-section (3) of section 16 provides for the manner ....
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....ies thereof, be deemed to be a dealer for the purposes of this Act; (g) 'sale', with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable consideration, and includes,- (i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) a delivery of goods on hire-purchase or any system of payment by instalments; (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) a supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (vi) a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or ....
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....ble to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods. (2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effe....
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.... or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm of Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, charging or payment of interest, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly." Form "F" which is relevant for the purpose of the case reads thus: ORIGINAL THE CENTRAL SALES TAX (REGISTRATION AND TURNOVER) RULES, 1957 FORM F [Form of declaration to be issued by the transferee] [See....
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.... the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 268.. Duties levied by the Union but collected and appropriated by the States.-(1) Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List shall be levied by the Government of India but shall be collected- (a) in the case where such duties are leviable within any Union Territory, by the Government of India, and (b) in other cases, by the States within which such duties are respectively leviable. (2) The proceeds in any financial year of any such duty leviable within any State shall not form part of the Consolidated Fund of India, but shall be assigned to that State. 269.. Taxes levied and collected by the Union but assigned to the States.-(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of....
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....s which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause continue to be levied until thirty first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." 29.. Paragraph 16 of Second Report of the Law Commission of India States: "16. The question whether on the analogy of the principles adopted in connection with sales or purchase in the course of import or export, a sale effected by the transfer of documents during the movement of goods from one State to another should be regarded as an inter-State sale or purchase has received our careful consideration. We are of the view that such sales or purchases should be regarded as inter-State transactions. It was suggested that if the rate of inter- State tax happened to....
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....State, or (b) in the course of import of the goods into the territory of India, or (c) in the course of export of the goods out of the territory of India. It is further proposed to replace clause (3) of article 286 by a new clause on the lines recommended by the Taxation Enquiry Commission. Under this revised clause Parliament will have the power to declare by law the goods which are of special importance in inter-State trade or commerce and also to specify the restrictions and conditions to which any State law (whether made before or after the Parliamentary law) will be subject in regard to the system of levy, rates and other incidents of the tax on the sales or purchase of those goods." 31.. Pursuant to or in furtherance of the report of the Law Commission of India, article 286 was amended. Article 286(3) now reads as under: "(3) Any law of a State shall, in so far as it imposes, or authorises the imposition of,- (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause....
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....terest of the States particularly having regard to the financial crunches faced by them. 33.. Having regard to the Statement of Objects and Reasons of the Central Sales Tax Act vis-a-vis the recommendations made by the law commission, as referred to hereinbefore, it would appear that the Parliament with a view to bring in expediency in such a matter so that the dispute can be determined as expeditiously as possible amended section 6-A. 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. 34.. 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 prov....
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.... U.P. See [1986] 62 STC 112 SC at page 118. (1986) 2 SCC 501. "It means that a sale of any of the goods specified in sub- section (1) to a registered dealer who has purchased them or to any unregistered dealer, shall for the purpose of this section, be deemed to be a sale to the consumer unless the purchasing dealer purchases the said goods for resale in the same condition. It merely strengthens the provisions of sub-section (2) of section 3-AA, i.e., unless the dealer proves otherwise, every sale shall, for the purpose of sub-sections (1), be presumed to a consumer. The combined effect of sub-sections (1), (2) and (3) of section 3-AA of the Act is that tax would be payable if the goods in question, i.e., cotton yarn, in this case, are sold to a dealer for consumption. Unless the dealer proves otherwise every sale by a dealer shall for the purpose of sub-section (1) be presumed to be a sale to a consumer. A sale of any of the goods mentioned in sub- section (1) to a registered dealer who does not purchase them for resale in the same condition, without processing or sale to unregistered dealer shall be deemed to be a sale to the consumer. Therefore, a registered dealer has to pro....
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....ion is created. Legal fiction, as is well-known, must be given its full effect. 38.. In the rules of evidence, there exist several presumptions. These presumptions may be rebuttable or irrebuttable. Irrebuttable presumptions are referred to as conclusive presumptions as they stand as conclusive proof of certain facts and are open to challenge only on very meagre grounds. Under the Indian Evidence Act, sections 41, 112 and 133 deal with conclusive presumptions. Even in other enact- ments, like the Indian Companies Act, 1956, such provisions exist. 39.. In the case at hand it is necessary to determine whether section 6-A of the Central Sales Tax Act sets up a conclusive presumption. "Presumptions may be looked upon as the bats of law, flitting in the twilight, but disappearing in the sunshine of facts." 40.. This metaphor used by Cochran, J., in Stumpf v. Mantgomery (1924) 101 OKL 256 Pac 85. pithily States the law. 41.. However, the rule of conclusive proof stands on a different footing. Once it is held, as we do, that section 6-A of the Central Act provides for a conclusive proof, except on a limited ground, reopening of assessment would not be permissible. RULE OF CONC....
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....ble. The expression 'rules of evidence' in section 9(2) must be construed in the light of its legislative history. Ever since the passing of the Evidence Act a conclusive presumption has been a part of the law of evidence. It is well-settled that the scope of power to legislate on a topic had to be determined by the denotation of that topic obtaining in legislative practice." However, in the minority opinion it was observed: "A rule of conclusive presumption made with a view to affect specified substantive right was a rule of substantive law and did not cease to be so because it rested on a fact which was relevant to it. The test was not one of relevancy but whether it was intended to affect a specified substantive right or provide a method of proof." The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. (1994) 2 SCC 323. In the case at hand, a statutory authority that had jurisdiction to pass such an order has passed the order. In addition there is no provision for appeal, which goes to show that this is part of the substantive law and not procedural law. This order is con....
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....'true'. It means, the assessing authority can conduct an enquiry to find out whether the particulars in the declaration furnished are correct, or dependable, or in accord with facts or accurate or genuine. That alone is the scope of the enquiry contemplated by section 6A(2) of the Act. On the conclusion of such an enquiry, he should record a definite finding, one way or the other. As to what should be the nature of the enquiry, that can be conducted by the assessing authority under section 6A(2) of the Act, is certainly for him to decide. It is his duty to verify and satisfy himself that the particulars contained in the declaration furnished by the dealer are 'true'. As a quasi-judicial authority, the assessing authority should act fairly, and reasonably in the matter. During the course of the enquiry, under section 6A(2) of the Act, it is open to him to require the dealer to produce relevant documents or other papers or materials which are germane or relevant, to find whether the particulars contained in the declaration (F forms) are 'true'. It is not possible to specify the documents or other materials or papers that may be required, to be furnished in all situations and in al....
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....utory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion." 52.. A legal fiction can be utilised in several ways wherein the word "deemed" is used. However, the mere use of the word "deemed" is not in itself sufficient to set up a legal fiction as was held in Consolidated Coffee Ltd. v. Coffee Board [1980] 46 STC 164 (SC) at page 174. (1980) 2 SCC 358 at para 11, stating that, "the word 'deemed' is used a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the Legislature has made such a deeming provision." 53.. The court went further to quote the position taken in St. Aubyn v. Attorney-General [1951] 2 All ER 473, wherein Lord Radcliffe observed thus: "The word 'deemed' is used a great deal in modern legislation. Sometimes it is....
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....had an option of filing a declaration in form F; after such amendment, he does not have such option, insofar as in terms of the amended provision, if the dealer fails and/or neglects to file such a declaration, the transaction would be deemed to be an inter-State sale. It is to be noticed that for the aforementioned purpose also, the Parliament advisedly used the expression "deemed". If the expression "deemed" is interpreted differently, an incongruity would ensue. 58.. In absence of any indication that the Parliament while enacting sub-section (2) of section 6-A did not intend to make the deeming provisions to be a conclusive fact as regard occasion of the transaction having taken place otherwise than as a result of sale, it would have dealt with the matter differently. 59.. Section 6-A(2) of the Act uses the following expressions which are important: (1) "thereupon"; (2) "for the purpose of this Act"; (3) "the movement of goods to which the declaration related shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale". Each of them must be given its proper meaning. 60.. A statute for the purpose of its interpretation must b....
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.... in the case of standard goods but the same is not conclusive. It is only one of the factors which is required to be taken into consideration along with others. In a case, however, where the purchaser places order on the manufacturer for manufacturing goods which would be as per his specifications, a presumption that agreement to sell has been entered into may be raised. 63.. The purport and object of section 6-A of this Act need not detain us for long as the same has been considered at some details recently in 20th Century Finance Corpn. Ltd. v. State of Maharashtra See [2000] 119 STC 182 (SC). (2000) 6 SCC 12 stating: "While examining the power of State Legislatures under entry 54 of List II in earlier part of this judgment, we have noticed that the situs of the sale or purchase is wholly immaterial as regards the inter-State trade or commerce, as held in Bengal Immunity Co. Ltd. case See [1955] 6 STC 446 (SC). AIR 1955 SC 661: [1955] 2 SCR 603. Further, the State Legislature cannot by law, treat sales outside the State and sales in the course of import as 'sales within the State' by fixing the situs of sales within its State in the definition of sale, as it is within the e....
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....herwise requires would mean "all the purposes" thereof. 70.. In H.L. Sud., Income-tax Officer, Companies Circle 1(1), Bombay v. Tata Engineering and Locomotive Co. Ltd. AIR 1969 SC 319 at 319, this Court held: "The expression 'for all purposes', used in section 43 only indicates that when an appointment is made for a particular assessment year it is stood for all purposes as far as that assessment is concerned, i.e., for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The expression does not extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made." 71.. The expression "for the purpose of the said Act" must also be given effect to. The same would ordinarily mean "for the purpose of all the provisions of the said Act". 72.. In M.A. Kochu Devassy v. State of Kerala (1979) 2 SCC 117, it is stated: "13. We find ourselves wholly unable to accept any of the contentions. The terms of section 2 of the 1947 Act as substituted by section 3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that the expression 'public servant'....
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....orp. 345 Mo. 650, 136 S.W. 2d 289, 302." 75.. The word "determination" must also be given its full effect to, which pre-supposes application of mind and expression of the conclusion. It connotes the official determination and not a mere opinion or finding. 76.. In Law Lexicon by P. Ramanatha Aiyar, Second Edition, it is stated: "Determination or order. The expression 'determination' signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression 'order' must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand AIR 1963 SC 677, 680. [Constitution of India Art. 136]." 77.. In Black's Law Dictionary, 6th Edition, it is stated: "A 'determination' is a 'final judgment' for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken 90 Wis. 236, 279 N.W. 2d 459, 463." 78.. It is not in dispute that the principles for determination as to wha....
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....ve, in the matter of construction the two aspects discussed earlier show that by necessary implication 'the agreement' spoken of by section 5(3) refers to the agreement with a foreign buyer." 79.. In terms of clause (3) of article 269, inter-State sale is contrasted from local sale. 80.. An order passed by the statutory authority who has jurisdiction therefor, the same would amount to a part of substantive and not procedural law. In addition to this there is no provision for appeal. Thus, it is only in the limited cases of fraud, mis-representation, etc., that reassessment can be directed and not if there had been a mere error of judgment. 81.. If it is not an inter-State sale provided through a legal fiction, then it amounts to transfer of stock and this is a finding which has been arrived at by a statutory authority wherefor there does not exist any provision for appeal. Therefore, it cannot be reopened on the premise that there was a mere error of judgment or change in opinion. 82.. Once it is held that such determination of an issue having regard to legal fiction created in terms of sub-section (2) of section 6-A is conclusive, it must a fortiorari follow that the s....
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....rovisions. 87.. It is further trite that an administrative authority or a quasi-judicial authority while adjudicating upon a lis is obligated to pose and answer a right question so as to enable it to arrive at a conclusion as to whether he has jurisdiction in the matter or not. By reason of a legal fiction which becomes attracted in terms of deter- mination made thereunder, the provisions of the Central Act shall stand excluded. 88.. In A.V. Fernandez v. State of Kerala [1957] 8 STC 561 at 574; [1957] 1 SCR 837, this Court observed: "There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the ....
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....It is a sale where the goods moved merely from the branch office to the buyer..." 91.. The purpose of verification of the declaration made in form F, therefore, is as to whether the branch office acted merely as a conduit or the transaction took place independent to the agreement to sell entered into by and between the buyer and the registered office or the office of the company situated outside the State. The said decision therefore, does not run counter to our reading of the said provision. Furthermore, the question which has been raised before us had not been raised therein. 92.. We, therefore, are of the opinion that the observations made by this Court in Ashok Leyland* (1997) 9 SCC 10, to the effect that an order passed under sub-section (2) of section 6-A can be subject-matter of reopening of a proceeding under section 16 of the State Act was not correct. 93.. However, we may hasten to add that the same would not mean that even wherein such an order has been obtained by commission of fraud, collusion, misrepresentation or suppression of material facts or giving or furnishing false particulars, the order being vitiated in law would not come within the purview of the a....
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.... or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case [Derry v. Peek (1886-90) All ER 1] what constitutes fraud was described thus: (ARR ER P.22 B-C): '......Fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false'." 96.. This aspect of the matter has been considered recently by this Court in Roshan Deen v. Preeti Lal AIR 2002 SC 33. Smt. Anita v. R. Rambilas AIR 2003 AP 32. Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003) 8 SCC 311....
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....n view of clause (6) of the Andhra Pradesh Administrative Tribunal Order made by the President under article 371-D which had taken away that jurisdiction of the High Court and vested the same in Administrative Tribunal. This objection was accepted by the High Court, and as a result, the writ petition was dismissed in limine. In these circumstances- proceeds the argument-the appellant is now precluded on principles of res judicata and estoppel from taking up the position, that the Tribunal's order is without jurisdiction. But, when Shri Sarathy's attention was invited to the fact that no notice was actually served on the Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chief Justice or the High Court to put in appearance on their behalf, the counsel did not pursue this contention further. Moreover, this is a pure question of law depending upon the interpretation of article 371-D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urg....
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....195 of 1999 merely a show cause notice has been issued in relation to three assessment years beginning from 1989-1990. This writ petition covers the period 1989-1990 to 1995-1996. In relation to period 1990-1991, 1991-1992 and 1992-1993 reopening proceedings had been initiated. A fresh cause of action has arisen in relation to the other assessment years. 103.. Having regard to the fact that the question as to whether the finding arrived at by the STAT would attract the exceptions carved out hereinbefore mainly would revolve round the question as to whether determination in terms of sub-section (2) of section 6-A of the Act has been obtained by playing fraud or suppression of record or not requires a detailed examination. Indisputably, the appellant/writ petitioner would be entitled to move the High Court in accordance with law. CIVIL APPEAL at S.L.P. (C) NO. 5579 OF 2001. The appellant herein had filed his application praying, inter alia, for the following reliefs: "(a) Grant Special Leave to appeal against the final judgment and order dated November 13, 2000 passed in S.T.A. No. 459 of 1999 by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai. ....