IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM: THE HONOURABLE MR. JUSTICE P.JYOTHIMANI W.P.Nos.3191 to 3194 of 2010 and M.P.Nos.1 to 1 of 2010 M/s.Sree Amman Sprockets Rep. By its Proprietor 174, Kanjikoil Road Perundurai-638 052 Erode District ..Petitioner in W.P.3191 to 3193 of 2010 Raja Industries Rep. by its Proprietor 207, Kanjikoil Road T.V.Palayam'Perundurai-638 052 Erode District ..Petitioner in W.P.3194/2010 Versus The Commercial Tax Officer Perundurai .. Respondent in all the Wps. Writ petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the entire records of the respondent in CST 776694/06- 07, 07-08, 08-09 and CST 441182/2007-08 dated 12.01.2010 respectively and quash the order passed therein and direct the respondent to accept the C forms submitted by the petitioner and to levy concessional rate of tax as per law. For Petitioners : Mr.A.P.Srinivas For Respondents : Mr.R.Mahadevan, AGP COMMON ORDER The writ petitions are directed against the orders passed by the respondent rejecting the 'C' forms filed by the dealer in respect of assessment made for the years 2006-07, 2007-08 and 2008-09 respectively on the ground that the 'C' forms were filed belatedly by the dealer and the same is against Rule 12 (7) of CST (R&T) Rules 1957, which contemplates the furnishing of 'C' forms to the Assessing Authority within 3 months after the end of the period to which the declaration relates. https://hcservices.ecourts.gov.in/hcservices/ 2. As correctly submitted by the learned counsel for the petitioners, even as per the circular issued by the Assessment Commissioner of Commercial Tax, Chepauk, Chennai dated 01.02.2000, it is instructed as follows :- “ the first original assessment order is to be passed with the maximum available 'C' forms. However, where the party subsequently produces 'C' Forms from other States invoking the provision that he(assessee) had tried his best, but it was beyond his control, because 'C' Forms were either not readily available or not readily issued in those States, the Assessing Officers have to be liberal in reopening the reassessing of such cases. Further the High Court of Madras has held in the case of M/s.Arulmurugan and Co.,(1984) reported in 51 STC 381 that the proviso to Section 8(4) does not insist that the assessee should establish before the prescribed authority that he has prevented by sufficient cause from filing the 'C' Forms in time. 'Sufficient Cause' spoken of the Section 8(4) is sufficient cause which appeals to the mind of the authority concerned and which enables it to allow further time without bothering about any onus on the assessees. Following the decision, this facility must be extended without fail. Instead of driving the assessee to go on appeal for this simple matter and getting case remanded by the appellate forum for reopening and considering the 'C' forms filed at the time of nearing the appeal, the Assessing Officers themselves may reopen the cases, admit the new 'C' forms, check on their correctness and genuineness, and pass revised assessment orders, as long as the period does not exceed the period of limitation.” Thus the instruction insists that 'Sufficient Cause' spoken of the Section 8(4) is sufficient cause which appeals to the mind of the authority concerned and which enables it to allow further time without bothering about any onus on the assessees. Hence, even if the dealer fails to explain the reason for the delay, the respondent has to independently apply his mind and decide about the 'C' forms, without insisting the onus on the assessee. 3. The said circular itself has been based on the Full Bench judgment of the High Court of Madras in the case of State of Tamil Nadu Vs. M/s.Arulmurugan and Co., (1982) reported in 51 STC 381. This decision of the Madras High Court was approved by the Supreme Court in the case of State of Andhra Pradesh Vs. Hydrabad https://hcservices.ecourts.gov.in/hcservices/ Asbestos Cement Production Limited (94 STC 410). 4. The above said judgment has been specifically followed by this Court in VISPRO FOUNDRY ENGINEERS LIMITED VS COMMERCIAL TAX OFFICER, ADYAR ASSESSMENT CIRCLE, MADRAS reported in 1991 (vol.81) Sales Tax Cases 169, wherein this court has held that there is a apparent contradiction between Section 8(4)CST Act and Rule 12(7) of the CST Act (Registration and Turn Over Rules 1957) and the 'sufficient cause' has been construed to mean to decide independently the cause for the delay in filing of 'C' Forms on the basis of doctrine of implied and ancillary powers and the reading of the said judgment also shows that the Assessing Officers have to be liberal in reopening the reassessing of such cases. This factum has been followed in paragraph 6 of the judgment cited supra. “ ...6. Learned counsel for the State has, however, pointed out that the observations in the Full Bench decision that the assessing authority has the statutory power of rectification of mistakes and other observations about these provisions are obiter dicts, and if accpeted, as a doctrine of implied or ancillary powers, would mean recognising in a statutory authority a power to review a final assessment order, which power shall always operate as a weapon to undo any assessment order. I would have given some thought to this objection as it is sell settled that no statutory authority or Tribunal can have the power to review its order unless such power is conferred by a statute, but, I am, however, not required to examine in this case, the extent of the ancillary powers that may be availed to the assessing authority. Section 8(4) itself has recognised the power of the assessing authority to permit filing of the declarations and forms referred to in clause (a) thereof, within such further time as that authority may, for sufficient cause, permit. I have already noted that rule 12(7) has prescribed the time-limit for filing the declaration referred to in clause (a) of Section 8(4) of the Act and that the assessee can file the declaration referred to in clause (a) of Section 8(4) or in rule 12(7) until the time of assessment by the first assessing authority. The expression “first assessing authority” under rule 12(7) indicates that the appellate authorities also are recognised as assessing authorities. It means that the first assessing authority, as https://hcservices.ecourts.gov.in/hcservices/ well as the appellate authority can for sufficient cause extend the time for filing the declaration. The Full Bench was considering whether an appellate authority has the same power as the assessing authority to allow further time for accepting C forms and not how and by what process the assessing authority himself could after the completion of the assessment extend the time for filing the form. I am of the opinion that the power which has been noticed to exist the appellate authority will be available to the assessing authority also to allow further time for accepting C forms or other forms mentioned in clause (a) of sub-section (4) of Section 8 of the Act.” 5. In such view of the matter, when the law is well settled in respect of filing 'C' forms, authorities shall independently decide irrespective of the fact assessee has explained the reasons for the delay or not. Hence, on the face of it, the impugned order of the respondent is unsustainable and is liable to be set aside. Accordingly, the impugned order dated 12.01.2010 is set aside with liberty to the respondent to pass appropriate orders taking into consideration the legal position and such orders shall be passed within a period of twelve week from the date of receipt of a copy of this order. 6. The writ petitions stand allowed on the above terms. No costs. Consequently, connected M.P.Nos.1 to 1 are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nvsri To The Commercial Tax Officer Perundurai + 1 cc to M/s.A.P.Srinivas,Advocate,SR.11562 + 1 cc to Special Government Pleader,SR.11002 W.P.Nos.3191 to 3194 of 2010 and M.P.Nos.1 to 1 of 2010 RR(CO) EM/8.3.10 https://hcservices.ecourts.gov.in/hcservices/