Godrej Industries Limited (Formerly known as Godrej Soaps Limited) vs State of Tamil Nadu

Chitra Venkataraman, J.—The assessee is on revision as against the order of the Sales Tax Appellate Tribunal relating to the assessment

year 1998-99 raising the following questions of law:

(1) Whether the time-limit provided for by section 4D of the Tamil Nadu General Sales Tax Act 1959 is directory or mandatory?

(2) Whether in the case of unfructified sales, there is no turnover at all within the meaning of section 2(r) of the Tamil Nadu General Sales Tax Act

1959?

(3) Whether the time-limit prescribed u/s 4D of the Tamil Nadu General Sales Tax Act, 1959 can operate as a bar against a claim for deduction

from turnover at the time of the final assessment in the case of unfructified sales?

The assessee is a dealer in soaps and cosmetics. For the assessment year 1998-99, the assessee claimed unfructified sales on a sum of Rs.

52,23,651. The assessing officer pointed out that though the assessee had filed form A4, they had not filled up the necessary columns particularly

Column Nos. 2, 3, 5, 6 and 9 in the form. Further, for the goods returned from April 19, 1999 to May 13, 1999, in most cases, they had filed the

claim for refund u/s 4D of the Tamil Nadu General Sales Tax Act (hereinafter called as ""the Act"") only on June 10, 1999, after 30 days. Thus, the

claim was proposed to be rejected summarily stating that the details omitted to be given by the assessee were essential details necessary to verify

correctness of the claim. Column 2 relates to the name and address of the dealers to whom the goods were sold; Column 3 relates to the date of

sale by the dealer who paid the tax; Column 5 relates to month in which the sale was included; Column 6 relates to date of return of goods and

Column 9 relates to whether the price of goods and tax charges thereon were refunded in full and if so date of refund made. The assessing officer

pointed out that instead of filling up the details, which are essential for considering the claim for refund, form A4 was filled with blanks.

Consequently, the claim was summarily rejected. After hearing the assessee, the assessing officer confirmed the assessment rejecting the claim for

refund.

Aggrieved by the said rejection, the assessee filed appeal before the first appellate authority. The assessee contended that the filing of form A4

for refund is only directory and not mandatory, consequently, the claim for refund could not be denied. In this background, the assessee placed

reliance upon the decision in the case of State of Tamil Nadu v. English Electric Co. of India Ltd. reported in [1992] 84 STC 1 (Mad). However,

the assessee filed copies of A4 returns in complete shape with all details. The first appellate authority, however, rejected the claim of refund on

unfructified sales. Thus, he rejected the contention of the assessee and held that the filing of form was only mandatory. Aggrieved by this, the

assessee went on further appeal before the Sales Tax Appellate Tribunal, which, confirmed the assessment.

The Sales Tax Appellate Tribunal pointed out that going by rule 23(2B) read with section 4D of the Act, it is clear that the time-limit prescribed

therein is for mandatory compliance by the assessee and failure to do so would result in rejection of the claim. Quoting the decision in the case of

State of Tamil Nadu v. English Electric Co. of India Ltd. reported in [1992] 84 STC 1 (Mad), the Sales Tax Tribunal held that the said decision

does not in any manner advance the case of the assessee, since in the decided case, this court confirmed the order of the Sales Tax Tribunal

remanding the assessment in respect of the turnover not covered by form XVII declaration so as to enable the assessee to file necessary

declarations. In other words, this court did not accept the plea of the assessee for concessional levy irrespective of filing form XVII. Thus, the

Sales Tax Appellate Tribunal also referred to the case of Traders and Traders, Importers and Exporters and Manufacturers, Representatives

Madras Vs. State of Tamil Nadu, , which related to cases of sales return and adjustment of tax. The Tribunal further pointed out that though the

law laid down by this court applied to the facts of the case on hand, the assessee, having not adhered to the time-limit prescribed under rule

23(2B), was not entitled to refund. The Tribunal further considered the contention of the assessee with reference to the assessee''s contention

based on rule 18 of the TNGST Rules. The Tribunal pointed out that it was no doubt that unfructified sale was not a sale and as such, such sale

turnover could not be assessed to tax under the provisions of the Act. At the same time, when the Act provided for specific method by providing

section 4D on the refund of tax on the unfructified sales, there is the statutory compulsion that the assessee should go by the said provision. It is

pointed out that if the specific provision on time-limit is not there in the statute, then the assessee could have requested the assessing officer for

exclusion of the turnover as a consequence of the assessment, without any time-limit for claim of refund, it could have claimed the refund.

However, in the wake of the existence of special provision on limitation, taking care of the situation like the one presented before this court, the

assessee had to comply with the mandatory requirements lest the claim for refund could not be granted. The Tribunal further rejected the

contention of the assessee that the mere non-liability to tax would not result in automatic refund. In other words, when there was no taxability under

the Act, there was no necessity to go for tax payment. Having considered the claims of the assessee, the Tribunal, while rejecting the claim of the

assessee pointed out that the assessee had neither complied with the mandate u/s 4D of the TNGST Act for making claim within 30 days from the

date of the unfructified sales nor claimed under rule 23(2B) of the TNGST Rules, which provided for alternative relief, viz., making the claim by

filing form A4 within 30 days before the due date for filing the return for tax adjustment. In the light of the view thus taken, the appeal was rejected.

Aggrieved by this, the present tax case revision.

Before going into the contentions raised by the assessee, provisions of section 4D and rule 23(2B) and form A4 needs to be extracted herein:

S. 4D. Refund of tax on unfructified sale.--Where the goods despatched by a dealer are returned for the reason that they were not taken delivery

of by the person for whom they were intended, the dealer shall be entitled to claim refund of the tax paid by him on such unfructified sale:

Provided that the claim is preferred within a period of thirty days of the receipt of the goods returned, to such authority, in such manner and subject

to such conditions as may be prescribed.

R. 23(2B). Every dealer claiming, refund u/s 4D shall, within thirty days of receipt of the goods returned, submit to the assessing authority a

statement of claim in form A4. In the alternative, he may adjust the amount by way of deduction from the tax payable by him in accordance with

the return in form A1 or AA1, as the case may be, provided he files along with the return the statement in form A4 showing all the claims relating to

the goods returned within thirty days, preceding the date on which, the return is due and such adjustment is made in the returns filed for the year.

Form A4

Statement of claim for refund of tax paid on sales return/unfructified

sales specified in sections 4C and 4D

(See rule 23(2A) and (2B))

To

The assessing authority

Sir,

I/We request that under the provisions of rule 23 of the Tamil Nadu General Sales Tax Rules, 1959, I/we may be granted refund of the tax paid

under the Act in respect of the goods the particulars of which are given in the Schedule under:

Schedule

Place:

date:

Place: Signature:

Date: Status:

Note: The details of unfructified sales, if any, may also be furnished in column (7).

A cursory reading of the provisions of section 4D shows the entitlement of the assessee to seek refund of tax on unfructified sale. The proviso as

may be seen from the extracted portion however, provides the period of limitation for the claim to be made. Thus, the claim preferred within 30

days of the receipt of the goods returned in accordance with the prescribed manner and subject to the conditions prescribed will be an

entertainable claim; where the claim is preferred beyond the time-limit prescribed therein, the same would go for rejection; so too, even though the

claim is made within 30 days, if it does not satisfy the conditions, the same would be rejected by the assessing officer. In other words, a claim has

to be not only within the time-limit of 30 days as prescribed u/s 4D of the Act, but the claim has to be in the manner prescribed and subject to

satisfaction of the conditions prescribed.

The relevant rule 23(2C), while touching on refund, however, provides for adjustment of the amount by way of deduction from the tax payable.

Thus, while prescribing that the dealer claiming refund u/s 4D of the Act must submit a statement of claim in form A4 within 30 days of receipt of

goods returned, alternatively, it permits the assessee to adjust the amount by way of deduction from the tax payable by him in accordance with the

return in form A1 or form AA1. However, along with the return, the statement in form A4 showing the claim relating to the goods returned within

30 days preceding the date on which the return is due is to be filed. The provision on the adjustment is similar to what is provided u/s 4C of the

Act relating to refund of tax on sales returns. Section 4C(d) of the Act states that the claim for refund of tax could be filed within a period of 30

days of the receipt or despatch of goods or before the completion of final assessment, whichever is later. The relevant rule is rule 23(2A), which is

similar to rule 23(2B) of the TNGST Rules.

As far as the filing of the return and claim for refund in form A4 as per section 4D of the Act is concerned, it is evident from the reading of the

order of assessment that the forms filed were after 30 days in most of the cases. However the details with regard to those claims of refund which

were filed within 30 days are not available either in the assessment or with the assessee at present. Nevertheless, the fact remains that in some of

the cases, certain claims were made beyond 30 days, while some of the claims were within 30 days. Quite apart, as is evident from the reading of

the assessment order, there were no particulars in Columns 2, 3, 5, 6 and 9, which are essential to verify the correctness of the claim and to

consider the claim for refund on the unfructified sales. As rightly pointed out by the assessing officer, the particulars prescribed therein are essential

for verifying the claim of the assessee for unfructified sale as well as for refund on unfructified sales and since, the same not being there, the

assessment was completed rejecting the same.

It is a matter of record that the assessee had filed form A4 before the first appellate authority however, on the premise of belated filing, the same

were rejected and not considered for granting the relief.

The learned counsel appearing for the assessee submitted that when appeal is considered to be continuation of the assessment proceedings, the

decision of the apex court in the case of State of Andhra Pradesh, etc. Vs. M/s. Hyderabad Asbestos Cement Production Limited etc. etc., would

come to the aid of the assessee for granting the relief. Consequently, being a case of non-liability under the provisions of the Act on an unfructified

sale, not being a sale, the Tribunal should have considered this aspect to grant the relief. Learned counsel appearing for the assessee submitted that

there is no dispute that these are all unfructified sale; considering the non-liability, the prescription of time-limit, i.e., 30 days from the date of return

of goods u/s 4D could not be a mandatory condition for compliance. He pointed out that while in the case of sales return, u/s 4C, a refund claim

would be considered if made within a period of 30 days of receipt or despatch of the goods or before completion of final assessment, whichever is

later, being a case of non-liability, an unfructified sale could not be put on a different platform or worse situation, than in the case of sales return.

Thus, once, the assessee shows that the sale had not taken place at all, it matters very little whether the claim is made within 30 days of the goods

returned or later than it. If before completion of final assessment, such claim is made through the prescribed form filed within the prescribed time

under the Act, the same ought to have been considered by the assessing officer. Taking the support of the decision of the apex court, he submitted

that even if the same had been made before the appellate authority, the relief could be considered by the said appellate authorities.

We do not find any justifiable ground to accept this plea. We find that the grounds raised herein are not different from what was considered by

the Sales Tax Tribunal as well as by the first appellate authority.

As far as the claim based on State of Andhra Pradesh, etc. Vs. M/s. Hyderabad Asbestos Cement Production Limited etc. etc., is concerned,

the issue related to furnishing of form C first time before the appellate authorities. In considering the question as to whether there is a mandate that

the assessee should furnish form C only before the assessing officer and that the appellate authorities did not have the power to receive form C in

appeal, the apex court, while affirming the view of this court stated that the power of the appellate authority under the TNGST Act is altogether

different from the power of the appellate courts under the Code of Civil Procedure. The appellate authorities under the tax enactments are in the

nature of revising authorities/that, once the appeal is before him, he could revise not only the ultimate computation arrived at by the assessing

officer, but he can revise every process which led to the ultimate computation or assessment. Thus, in a given case, even if the assessee had failed

to produce form C before the assessing officer, nothing prevents the appellate authorities to receive the forms, provided the assessee shows

sufficient cause for not producing the form C before the assessing officer. The apex court however viewed that receipt of form C in the course of

appeal proceedings cannot be a matter of course; and could be allowed only when sufficient cause is established by the dealer for not producing

them before the assessing authority as contemplated under rule 12(7) of the Act. Thus, while holding that the primary obligation on the part of the

dealer is to file statutory forms before the assessing authority, his failure to abide by it as prescribed under the Act but produced before the

appellate authority must be properly explained.

As far as the present case is concerned, the assessee does not dispute the fact that at least in certain cases it had failed to file the form within

30 days of the receipt of the goods returned, and even in cases where the same had been filed within 30 days, it failed to give such details, which

are required under law to be given. The assessee does not make a dispute on this aspect that the claim for unfructified sale could be entertained

only subject to the assessee satisfying those conditions and the question of refund arises only when the assessee satisfies the assessing authority that

in fact, there had been an unfructified sale.

As far as furnishing of form before the first appellate authority is concerned, the assessee had not shown any reasons for the belated filing.

Learned counsel for the assessee strenuously argued that filing of the form within 30 days is not mandatory and it can be done at any time and the

same can be accepted even at the appellate stage based on the reliance of the decision of the apex court reported in State of Andhra Pradesh, etc.

Vs. M/s. Hyderabad Asbestos Cement Production Limited etc. etc., .

Firstly on the admitted facts herein, the assessee had not filed form A4 within 30 days time-limit prescribed and even thereafter, before the

appellate authority without prescribed particulars on the belated filing, we do not find any justification to grant the relief.

As far as the claim based on section 4C of the TNGST Act is concerned, as already pointed out, even though section 4C(d) speaks about tax

refund on sales return within the time specified therein, rule 23(2B) provides for adjustment of the amount by way of deduction from the tax

payable by the assessee in accordance with the return in form A1 or AA1 as the case may be. The only difference between section 4C and section

4D is that while in the case of section 4C extended time is given for lodging the claim till the completion of final assessment, for section 4D, the

limitation is given as 30 days on the receipt of the goods returned. Only in the case of adjustment, rule 23(2B) gives the time as 30 days preceding

the date on which the return is due and such adjustment is made in the return filed for the year.

Thus, in the absence of any material to show that the assessee had given sufficient cause for not making a claim before the assessing authority in

the manner prescribed under the law, we do not find that the decision reported in State of Andhra Pradesh, etc. Vs. M/s. Hyderabad Asbestos

Cement Production Limited etc. etc., will be of any assistance to the assessee. On the other hand, applying the decision reported in State of

Andhra Pradesh, etc. Vs. M/s. Hyderabad Asbestos Cement Production Limited etc. etc., , the claim has to be rejected on failure of the assessee

not showing the cause for belated filing of the form.

Thus, be it a case for refund of tax on sales return filed u/s 4C or claim u/s 4D of the Act, one is a case of reversing the entry and raising the

claim for refund of tax on sales returns by way of bilateral act and another one is the unilateral one claiming refund of tax on unfructified sale,

wherein, the purchaser had not taken the delivery of goods and hence, the dealer had no liability under the provisions of the Act. Conscious of the

non-assessability and non-liability under the provisions of the Act, the statute has fixed a time-frame within which the claim has to be made. In any

event a mere claim that there had been an unfructified sale or sales return, by itself, would not lead to an automatic grant of refund or adjustment in

either case. The assessee has to prove the sales return or un-fructified sale as the case may be. When the Act prescribes the necessary form to be

filed within the time giving necessary details regarding the person to whom the goods were sent, the date of sale, the dealer who paid tax, month in

which sale was included, the date on which return of goods were made and the details as to whether the price of goods and tax charges thereon

were refunded in full and if so, date of refund made, the assessee has to make the claim before the assessing officer in the manner prescribed under

the Act.

Even in the case of furnishing of C forms, in the decision reported in [1992] 84 STC 1 (Mad) (State of Tamil Nadu v. English Electric Co. of

India Ltd.), after referring to the decision of the apex court in the case of The Commissioner of Income Tax Vs. Mcmillan and Co., , the apex

court observed as follows (page 194 in 33 ITR):

While we agree that, in the first instance, the income tax Officer as the first assessing officer has to form an opinion about the applicability of the

proviso to section 13, we do not agree that it is not open to any other authority, which is lawfully in seisin of the order of assessment of which the

method of accounting u/s 13 is only a part, to come to a different conclusion with regard to the applicability of the proviso....

The learned counsel appearing for the assessee placed heavy reliance on rule 18(4) of the Tamil Nadu General Sales Tax Rules and submitted

that given the fact of non-liability, once the assessment is made and the turnover is determined, the refund of tax is an automatic one.

We do not think that such line of reasoning is well received by this court. The refund on an assessment under rule 18 is different from the claim

u/s 4C of the Act. Here is a case, where the assessee originally included the turnover for assessment in the return, however, the moment he found

that the goods discharged were returned on the ground that the purchaser had not taken delivery of the goods, then the sale became an unfructified

sale. Thus, if the claim has to be considered so that the turnover does not go for any assessment, then there must be a claim made in the manner

prescribed and the question arises as to the refund or adjustment. When the claim thus itself rests on proving the unfructified sale for which

particulars are to be given in the form prescribed under the Act before the assessment gets finalised, the mere claim that it is an unfructified sale and

that the assessment would not include such turnover would not lead to an automatic grant of refund. Thus, even though the transaction itself would

not fall for any consideration in the assessment, yet, such decision rests on the assessee proving the claim and consequently make the claim for

refund in the manner known to law. Thus, the time-limit prescribed under the Act and rule 23(2B) cannot in any manner, be diluted for the purpose

of granting relief to the assessee.

However, as pointed out by the apex court in the decision reported in State of Andhra Pradesh, etc. Vs. M/s. Hyderabad Asbestos Cement

Production Limited etc. etc., an appeal being a continuation of the assessment, the assessee may file form A4 before the appellate authority and the

same would be subject to the assessee showing and satisfying sufficient cause and not otherwise. However, where there lies no dispute on the

claim of unfructified sale, the claim must necessarily go by the provision of the Act and the Rules.

As far as the decision in the case of State of Tamil Nadu v. English Electric Co. of India Ltd. reported in [1992] 84 STC 1 (Mad) is

concerned, this decision does not, in any manner support the case of the assessee. The facts in the reported decision were that on the sales that

took place in the course of the assessment year 1981-82, the assessee raised fresh invoices cancelling the original invoices issued during the year

1981-82. The credit invoice issued in the year 1982-83 in respect of the sale cancelled were placed before the Tribunal. The assessee contended

that considering the cancellation of the original invoices the said sales could not be considered as turnover relating to the assessment year 1981-82.

The assessing officer as well as the Appellate Assistant Commissioner held that the claim was barred by limitation. The Sales Tax Appellate

Tribunal held that since the assessee had shown reasonable cause on its failure to file the forms in time, the matter merited a remand back to the

assessing officer. Thus, on the facts found therein, on sufficient cause, the Tribunal justified the need for making the remand. On facts, this court

thus confirmed the order. Hence, in this case, the Sales Tax Appellate Tribunal rightly held that the decision in the case of State of Tamil Nadu v.

English Electric Co. of India Ltd. reported in [1992] 84 STC 1 (Mad) does not, in any manner, advance the case of the assessee, but supports the

case of the assessing officer.

In the light of the above, we have no hesitation in rejecting the claim of the assessee that the time-limit u/s 4D is not mandatory. Having held

that the time-limit is mandatory in the nature of claim on non-liability of the transaction, we may however point out that as even in the assessment

order, the assessing officer had admitted that out of the turnover of Rs. 52,23,651, some of the transactions are made beyond 30 days and some

transactions are made within 30 days. Within the claim of Rs. 52,23,651, there appears to be some turnover, which falls for consideration, they

being made within 30 days of the time-limit. The only failure here is that the assessee had not given the particulars necessary for the purpose of

granting relief. The assessing officer has not considered this aspect, but straight away rejected on the reason that the assessee had not given the

details required for verification of the claim and thereby included the turnover for assessment. Since the case had gone on the claim of the assessee

on the question of mandatory or directory nature of the provisions, we feel that in fitness of things, the assessing officer be directed to look at this

aspect on the turnover, which were covered within a time-frame of 30 days within receipt of the goods. As for the forms filed beyond 30 days, in

the absence of any satisfactory explanation, we do not accept the case of the assessee. Thus, we accept the plea of the assessee for a remand only

in respect of cases where the claim was made within 30 days of the receipt of the goods on unfructified sale with the complete details. On receipt

of the same, the assessing officer shall verify the same with other details and if the particulars are to the satisfaction of the officer as per the

provisions of the Act the same may be considered and granted relief. We make it clear that the remand is only in respect of the turnover for which

the forms are filed within 30 days and not those filed before the Appellate Assistant Commissioner without any satisfactory explanation. The tax

case revision filed by the assessee stands dismissed in respect of the turnover for which the forms were filed beyond 30 days'' time-frame and

without assigning any reason before the Appellate Assistant Commissioner. However, in respect of forms filed within time, the assessing officer is

directed to consider the claim in accordance with law. No costs.