TaxTMI 
TaxTMI 
2010 (5) TMI 761
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.... 31, 1993. The applicant was assessed under the Bombay Sales Tax Act and Central Sales Tax Act on March 25, 1996. The applicant preferred separate appeals against both the orders of assessment on June 10, 1996. The appeal against the order under the Bombay Sales Tax Act is registered as DC/Appeal-VI/A-40/96-97 whereas the appeal against the order under the Central Sales Tax Act was registered as DC/Appeal-VI/CA-40/96-97. On August 7, 1999 a show-cause notice for reduction of set-off under rule 41D and enhancement in tax, interest and penalty was given to the applicant by the Deputy Commissioner of Sales Tax, Appeal VI. The applicant filed its reply dated August 21, 1999 to the said show-cause notice. In the meanwhile, the Government of Maharashtra by notification announced Maharashtra Rajya Kar Vivad Nivaran Yojana, 1999. One of the terms for availing of the benefits of the said scheme was to withdraw the appeal, if filed, unconditionally. Therefore, on September 1, 1999 the applicant in terms of the said Scheme of 1999 applied for withdrawal of the appeal under the Central Sales Tax Act. The Deputy Commissioner of Sales Tax (Appeal VI) who had earlier issued the show-caus....
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....bai. In the second appeal, the Tribunal by its judgment dated January 31, 2001 the action of the first appellate authority disallowing the claim of branch transfers and labour charges was confirmed by the Tribunal. Being aggrieved by the judgment dated January 31, 2001 passed by the Second Bench of the Maharashtra Sales Tax Tribunal at Mumbai the applicant preferred reference application under section 61(1) of the Bombay Sales Tax Act, 1959 referring the question mentioned in paragraph 1 (supra) to this court under section 61(1) of the Bombay Act. Submissions Ms. Badheka, learned counsel appearing for the applicant submits that though the appeal under the Central Sales Tax Act was disposed of under the Maharashtra Rajya Kar Vivad Nivaran Yojana, 1999, the authority proceeded with the appeal filed under the Bombay Sales Tax Act and decided against the applicant. She submits that there are two distinct enactments, one is the Bombay Sales Tax Act, 1959 enacted by virtue of legislative powers under entry 54, List II to Schedule VII of the Constitution. The other is the Central Sales Tax Act, 1956 enacted by the Parliament by virtue of legislative powers under entry 92 of t....
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....ate. The fact of branch transfer can be proved by any other mode of proof such as books of accounts, branch accounts, certificate from branch, etc. The learned counsel appearing on behalf of the applicant submits that though their case attained finality under the Central Sales Tax Act, the authority below proceeded against the same cause of action under the State Act and held against the applicant. The learned counsel for the applicant submits that the authority wrongly cast upon the applicant burden of proving the transfer of their stock to their branch office by producing additional evidence other than form F. She submits that all the documents were produced in support of the transactions which were already verified by the assessing authority while allowing the same under the Central Sales Tax Act. She submits that the jurisdiction to determine the character of the transaction whether the goods are sold in the State in terms of section 4 of the Central Act or are dispatched outside the State or are in the course of inter-State sales is with the Central Government under the Central Sales Tax Act. Where the goods are dispatched to a branch outside the State and sold outside t....
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....fore reopening of the assessment order, it is mandatory on the part of the authority to issue notice. In the present case the authority failed to give any notice to the applicant for reopening the assessment under the Central Sales Tax Act. She relies upon the judgment of this court (to which one of us, (i.e., Shri Justice V.C. Daga) was a party) in the matter of K. Mohan & Co. (Exports) v. M.H. Vatnani, Assistant Commissioner of Sales Tax reported in [2002] 126 STC 126, in which this court has held that for reopening the assessment under the Central Sales Tax Act, a notice is mandatory. Paragraph 8 of the said judgment reads as under: "8. It is not in dispute that the assessment for the period September 1, 1978 to August 31, 1979 passed on March 29, 1982 allowing deduction of high sea sales amounting to Rs. 62,35,943 has not been reopened at all under the CST Act, 1956 and as such the said assessment has become final. Under the circumstances, reopening of the assessment under the BST Act on account of the alleged wrong deduction under the CST Act cannot be sustained. It is pertinent to note that the assessment under the CST Act and the BST Act is done by the same authority and ....
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.... not a sale can be proved by the evidence of dispatch only. In the present case, the appellant has not produced such evidence of dispatch and, therefore, the claim to that extent of branch transfer cannot be allowed in appeal and hence the claim of branch transfer worth Rs. 60,45,032 is required to be disallowed and taxed to sales tax at 10 per cent which comes to Rs. 6,06,504. The learned Additional Government Pleader further submits that parallel action can be taken by the authority under the Central Sales Tax Act for the same cause of action because both the Acts are different, procedure is different and liability is also different. Conclusions We have heard the learned counsel for the parties and perused the written submissions made by them. The question of law to be answered in this case is as under: Whether upon a true and correct interpretation of section 55 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in upholding the order of the first appellate authority in disallowing the claim of branch transfers of Rs. 60,45,032 which was already allowed under section 6A of the Central Sales Tax Act, 1956 when there was no appeal pending under the Central S....
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....er in which a finding is given that the movement of the goods was occasioned by reason of transfer otherwise than by reason of sale, is conclusive for all purposes: it can only be reopened on a small set of grounds such as fraud, misrepresentation, collusion, etc. Although it provides for a burden of proof, section 6A of the Central Sales Tax Act, 1956, has to be read in the context of section 6. Section 6 provides for the liability to pay tax on inter-State sales. Any transaction which does not fall within the definition of 'sale' in section 2(g)-the burden whereof would evidently be on the assessee/dealer-would not be exigible to tax. Prior to the amendment of sub-section (1) of section 6A, the dealer had an option of filing the declaration in form F. After the amendment, the dealer does not have such an option. If the dealer fails and/or neglects to file such a declaration, the transaction would be deemed to be an inter-State sale. For this purpose also Parliament advisedly used the expression deemed. The amendment was necessitated not only to make the dealer file such a declaration imperatively but also to see that such movement of goods becomes inter-State sale b....