TaxTMI 
TaxTMI 
2010 (7) TMI 886
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....0] UPTC 1320. The learned single judge had framed the following questions, which according to his esteemed opinion required consideration by the Full Bench: "(a) In view of fact that the requisite forms for the claim of exemption/concession are required to be filed during the course of assessment proceeding as per rule and in case of non-furnishing of form during the assessment proceeding tax is levied at the normal rate whether, interest under section 8(1) can be demanded from the due date of the return in which turnover was disclosed and exemption/concession has been claimed and tax at the normal rate has not been paid or from the date of assessment order or under section 8(1B) in case of non-payment even after the assessment order? (b) Whether in case of non-furnishing of requisite form by the time of assessment proceeding, the tax assessed at a normal rate can be said to be tax admittedly payable under section 8(1) of the Act? (c) Whether there is any scope for the consideration of legitimate expectation or hope or bona fide belief under section 8(1) of the Act and what is the stage of determination of liability of tax whether return or assessment?" When the matter was plac....
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....ass of persons. (1A) Before submitting the return under sub-section (1) or along with such return the dealer shall deposit in such manner as may be prescribed the amount of tax due on the turnover shown in such return. Rule 25B. Authority from which declaration forms may be obtained; use, custody and maintenance of records of such forms and matters incidental thereto:-(1) to (4) . . . (5) A registered dealer who claims to have made sale to a dealer holding a recognition certificate shall, in respect of such claim, furnish to the Sales Tax Officer the portion marked 'original' of the declaration form received by him from the purchasing dealer, up to the date on which he is required to furnish his accounts for final assessment in respect of the year to which the claim pertains. The Sales Tax Officer may in his discretion, require the selling dealer to produce for inspection the portion of the declaration form marked 'duplicate'. Rule 41. Submission of returns and assessment of tax.-(1) Every dealer liable to tax, the aggregate of whose turnover, as referred to in sub-section (2) of section 3, in any assessment year exceeds rupees two lakhs, shall, before the expir....
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....subrule, within a month of the expiry of the relevant assessment year. Explanation I.-'Admitted tax liability' means the tax which is payable under this Act on the turnover or, as the case may be, the turnover of purchases or both, as disclosed in the accounts maintained by the dealer or admitted by him in any return or proceeding under this Act, whichever is greater, or, if no accounts are maintained, then according to the estimate of the dealer. Explanation II.-'Estimated admitted tax liability' means the tax payable under the Act by the dealer on his estimated turnover or estimated turnover of purchases of the assessment year or both, as the case may be. (3) . . . (4) Before submitting the return under sub-rule (1), sub-rule (2) or sub-rule (3), the dealer shall, in the manner laid down in these rules, deposit the total tax due under the Act on the turnover of sales or purchases or both, as the case may be, disclosed in the return and shall submit to the Sales Tax Officer, along with the return, the treasury challan, bank draft or cheque for the amount so deposited: Provided that where a Government Department wants to deposit the tax by book transfer, such D....
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.... be leviable. In support of his aforesaid submission, he has relied upon the following decisions, namely, Commissioner of Trade Tax, U.P. Lucknow v. Jobex India [2005] 28 NTN 175, Commissioner of Trade Tax v. Deepak Hume Pipe Manufacturing Company [2006] 29 NTN 104 and Commissioner of Sales Tax v. Qureshi Crucible Centre [1993] 89 STC 467 (SC); [1993] UPTC 901. Sri Saxena, learned counsel for the dealer, however submitted that the statute does not require to submit declaration forms along with the return. It can be filed up to the stage of assessment and, therefore, till the stage of assessment, there was always a legitimate expectation to file the form which stands substantiated with the bills issued by the dealer and in case the form IIIB has not been filed, it cannot be treated to be admitted tax till the stage of assessment. Consequently, interest under section 8(1) cannot be levied and realised. In addition to the decisions relied upon by him before the learned single judge, he has relied upon the following decisions, viz. Frick India Limited v. State of Haryana [1994] 95 STC 188 (SC); [1994] 5 SCC 559, Roozan Pipe Industries v. Commissioner of Sales Tax [2004] UPTC 921, Ind....
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.... 8(1) of the Act. In the case of Commissioner of Sales Tax, U.P. v. Indian Herbs Research and Supply Company reported in [1982] UPTC 804, which is directly on the controversy involved in the present case, this court has considered section 8 of the Central Sales Tax Act along with section 8 of the U.P. Sales Tax Act, as amended by U.P. Act No. 38 of 1975 and has held that where a dealer is seeking exemption from levy of tax upon some part of the turnover unless he fulfils the statutory requirement for such a claim he shall have to pay interest upon the unpaid amount of tax calculated on the turnover worked out without regard to claim of exemption. In this case, the High Court disapproved the view of the Tribunal that interest for not filing of form C on the unpaid amount would be payable from the date of assessment. The reason is that in sub-section (1) of section 8 of the Act, the starting point for the liability for payment of interest on the unpaid part of the admitted tax has been provided for and it is June 1, 1975 or the last date prescribed for payment of admitted tax, whichever is later. The Tribunal in the case in hand has not given any reason for deletion of levy of inter....
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....ent and demand. Sub-section (1B) applies if the tax assessed is not deposited as required by sub-section (1A). The dispute here, as aforestated, was in regard to the classification of the assessee's products. Such classification dispute is ordinarily resolved in assessment proceedings and, if resolved against the assessee, the assessee has to make payment of the differential amount of tax as required by sub-section (1A) failing which the provisions of sub-section (1B) apply. The requirement of sub-section (1) is that the assessee must pay tax on the amount of his turnover as particularised in the Explanation thereto. Interest under the provisions of sub-section (1) cannot be levied in respect of a dispute such as a classification dispute which is resolved only by the assessment. Sub-section (1) has no application to such a situation. Having regard to the conclusion that we reach upon the plain words of section 8, it is unnecessary to go into the assessee's contention that a substantial part of the amount claimed by the Revenue as and by way of interest is under the provisions of the Central Sales Tax Act, 1956 and under that Act no interest is leviable." In the case of ....
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.... to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation and it would be difficult to hold that the 'tax payable' by him is not paid to visit him with the liability to pay interest. In my view, therefore, the dealer having not admitted the liability to pay tax in respect of the purchases in question and there being nothing to show that his denial was absolutely without any basis the disputed tax could not be treated as the tax admittedly payable by it. Therefore, no interest was leviable." In the case of Commissioner of Sales Tax, U.P., Lucknow v. Angana Udyog, Jhansi [1996] 23 STR 235 (All) dealer was claiming exemption under section 4A of the Act being new unit. On account of the requirement of application under section 4A of the Act tax has been assessed and the interest under section 8(1) of the Act has been demanded. The claim of the dealer was that since application under section 4A of the Act was filed under the bona fide belief, the tax was not realised from the customers and neither the liability of tax has been admitted nor deposited and, therefore, interest under sectio....
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....levied and collected along with interest at 12 per cent per annum on the ground that the provisions of the Haryana General Sales Tax Act are analogous to those of the Rajasthan Sales Tax Act. In the case if Roozan Pipe Industries [2004] UPTC 921, a learned single judge of this court has held that if the dealer has not admitted some of the purchases from Steel Authority of India Limited and had issued blank IIIB forms, if by some manipulation some purchases are mentioned in that from IIIB it would not be treated as admitted purchases and, therefore, the liability for payment of interest would not be there. In the case of Indian Oil Corporation Ltd. [2005] UPTC 160, a learned single judge has held that where the claim of export has been contested bona fidely merely because the claim has been rejected, interest would not be leviable under section 8(1) of the Act. In the case of E.I.D. Parry (India) Ltd. [2005] 141 STC 12 (SC); [2006] UPTC 143, the apex court while considering the provisions of the Tamil Nadu General Sales Tax Act, 1959, has held that any interest cannot be levied under sections 13 and 24 of the aforesaid Act unless and until an assessment has taken place and....
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....276; [1994] UPTC 893, the apex court had observed that the law does not envisage the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid liability to pay interest and so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation and it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest. Similarly, the apex court in the case of Hindustan Aluminium Corporation [2002] 127 STC 258; [1999] UPTC 1, has held that the requirement of sub-section (1) is that the assessee must pay tax on the amount of his turnover as particularised in the Explanation II. Interest in the provisions of sub-section (2) cannot be levied in respect of a dispute such as calculation dispute which resolved only by the assessment. In the case of E.I.D. Parry [2005] 141 STC 12; [2006] UPTC 143, the apex court has held that there should be statutory provision for payment of interest on the unpaid amount even before assessment. In the case of Qureshi Crucible Centre [1993] 89 ....