WP(C) 6982/2004 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. S K Agarwal, learned Counsel appearing for the petitioners. Mr. R. Du bey, learned Standing Counsel represents the Revenue. 2. The petitioner is a registered dealer under the Assam General Sales Tax Act, 1993 (hereinafter referred to as the AGST Act ) and the Central Sales Tax Act, 1956 (hereinafter referred to as the CST Act ) with the Superintendent of Taxes, Unit-C, Guwahati. The petitioner deals in life saving drugs and makes sup ply to the distributors located in different North Eastern States. 3. This case pertains to the assessment year 2000-2001, for which exemption benefits were given to the assessee by accepting the ’C-Forms’ submitted by the assessee furnished by the registered dealers to whom supplies were made and the assessment was completed on 5th June, 2002. 4. The impugned proceeding was initiated through a show cause notice dated 1st January, 2003 issued by the Superintendent of Taxes in purported exercises o f powers under Section 18(1) of the AGST Act read with Section 9(2) of the CST A ct, whereby the petitioner was asked to show cause as to why 6 (six) numbers of C-Forms earlier accepted by the assessing authority should not be rejected, beca use of the irregularities noticed in those C-Forms. Accordingly the dealer was a sked to show cause as to why the sales covered by the defective C-Forms should n ot be treated as sales made to unregistered dealers and why reassessment should not now be made, for the assessment year in question. 5. The petitioner belatedly responded to the show cause notice through his reply dated 7th June, 2003 in which they assured that fresh C-Forms from the pur chasing dealers will be collected and will be furnished to the assessing authori ty within 30 days. 6. But since the petitioner failed to furnish fresh C-Forms, as assured by them in their reply, the Superintendent of Taxes by exercising powers under Sect ion 17(4) of the AGST Act read with Section 9(2) of the CST Act, made fresh asse ssment by rejecting the 6 C-Forms mentioned in the show cause notice and disallo wed the claims by declaring that the assessee is liable to pay tax under Section 8(1) of the AGST Act and also under the CST Act. A Bakijai proceeding for recov ery of the assessed tax was thereafter initiated by the Certificate Officer, und er the Bengal Public Demands Recovery Act. 7.1. Mr. SK Agarwal, learned counsel refers to the Circular dated 2nd July, 2 003 of the Commissioner of Taxes, Nagaland to show that C-Forms issued prior to 11th June, 2001 by the Nagaland based purchasing dealer to the Principal Dealer of another State are valid and accordingly the tax exemption sought on the basis of those 3 C-Forms, should not have been disallowed in the reassessment exercis e. As regards the discrepancy in the C-Form of M/s. Das Medical in which the reg istration number of the purchasing dealer was not mentioned, Mr. Agarwal points out that subsequently a certificate was issued by the Superintendent of Taxes me ntioning the registration number of M/s. Das Medical. On the defect in the C-For m furnished by M/s. Hills Medical, Aizawl, which was pre-dated, the petitioner c ontends that subsequently fresh C-Form was obtained to replace the defective C-F orm. For the 6th C-Form, mentioned in the show cause notice, which was considere d defective because the Form was left blank, Mr. Agarwal contends that the requi site details of sale were mentioned on the duplicate copy of the C-Form. 7.2. By giving the above clarification, the learned counsel submits that the C-Forms accordingly should not have been rejected and tax exemption claimed on t he basis of those six C-Forms should be allowed, by treating the sales to have b een made to a registered dealer. 7.3. The learned counsel also contends that no opportunity was granted to the petitioner before the impugned reassessment was made and the same could not hav e been made, without considering that defects in the C-Forms have since been rec tified. 8.1. Questioning the maintainability of the writ petition filed by the petiti oner, Mr. R Dubey, learned counsel contends that the petitioner should have appr oached the Appellate Authority if they were aggrieved by the reassessment order and are not entitled to invoke the writ jurisdiction of the Court, without exhau sting the statutory remedy provided to an aggrieved assessee. 8.2. Mr. Dubey further submits that the assessee in spite of receiving the sh ow cause notice where the defects in the C-Forms were indicated, had failed to a ddress the problem till the reassessment was made on 3rd July, 2003. The counsel points out that the petitioner failed to act with reasonable promptitude after he received the show cause notice of 1st January, 2003 and only because of the d efault of the petitioner and since the furnished six C-Forms were invalid, the t ransactions were considered as sale to unregistered dealers and were made assess able to tax. 9.1. Mr. Agarwal, in order to show justification for Court’s intervention wit h the reassessment has relied upon the decision of the Madhya High Court in Comm issioner of Sales Tax, M.P. vs. Badrilal Hanumanprasad reported in 44 (1979) STC 479. In this case the C-Form accepted at the time of assessment was found to be without any date and noticing this defect, the Commissioner of Sales Tax exerci sed suo moto revision and held that the Authority was wrong in accepting the def ective C-Form. The Board of Revenue on appeal held that the assessee should be g iven an opportunity to rectify the defect and accordingly remanded the case back to the Commissioner. On a reference, the High Court held that the Board was rig ht in remanding the case, for giving an opportunity to the assessee to rectify t he defects in the C-Form. 9.2. This Court has no quarrel with the propositions of law laid down by the Madhya Pradesh High Court But what must be noticed in the case of Badrilal Hanum anprasad (Supra) that a sou moto revision was made by the Assistant Commissioner for rejecting the earlier accepted C-Form and this was done without giving any opportunity to the assessee unlike in the present case, where reassessment was p receded by a show cause notice. 9.3. In the other case relied upon by the petitioner i.e. the Tirukoilur Oil Mills Ltd. Vs. The State of Madras reported in 20 (1967) STC 388, when it was in dicated by the assessing authority that the declaration in C-Forms were inconsis tent with the Rules, the assessee obtained fresh C-Forms and tendered them to th e Assessing Officer at a stage, prior to completion of the assessment. But the A ssessing Authority took the view that he had no power to condone the delay in fi ling the declaration and accordingly the assessee was held liable to a higher le vy of tax. In this case the Madras High Court held that the Principles of Natura l Justice would require that when something is discovered at the Appellate Stage which exposes the assessee to a higher tax, an opportunity must be given to the assessee to rectify the defects within the time granted for the purpose. 9.4. The facts in the case of Tirukoilur Oil Mills Ltd. (Supra) shows that th e Madras High Court was considering a case where the Assessing Officer did not c onsider the corrected C-Forms although they were tendered before assessment was completed. But the assessee in the present case despite receipt of the show caus e notice failed to take any steps to cure the defects in the six C-Forms until t he reassessment proceeding was finalized. Their belated response after 5 months of the show cause notice was limited to an assurance to the Assessing Authority that fresh C-Form will be furnished within 30 days. But the petitioner never fur nished the corrected C-Forms and clarification given by the Commissioner of Taxe s, Nagaland on 2nd July, 2003 (Annexure-IV) and by the Superintendent of Taxes, Dimapur (Annexure-V) were not furnished to the Assessing Officer at any time bef ore the impugned reassessment was made on 3rd July, 2003. 9.5. In the case in hand, although an opportunity was given to the assessee t o cure the defects, they failed to avail the opportunity and therefore they are not at per with the assessee before the Madras High Court case where the concern ed C-Forms were rejected in exercise of sou moto revisional power, without affor ding any opportunity to the assessee. Similarly in the Madhya Pradesh High Court case also, the corrected C-Forms were tendered by the assessee before the asses sment was made and that is how, the Court held that the Principles of Natural Ju stice was breached in the case. 9.6. But the assessee in the instant case was issued a show cause notice wher e the specific defects in the six C-Forms were mentioned and they were given an opportunity to cure the defects. But they failed to avail this opportunity. Ther efore the Revenue can’t be faulted for the lapses of the assessee and the merit of the re-assessment can’t be examined now by looking into materials, which were not made available to the Assessing Officer. 10. Accordingly I find no justification to interfere with the impugned order of re-assessment, as it is the assessee who failed to effectively respond withi n reasonable time even after receipt of the show cause notice, where the defects in the C-Forms were specified. 11. It must also be recorded that the petitioners had approached the writ co urt without exhausting the alternate remedy provided under Chapter VIII of the A GST Act and on this count also, I find enough justification to reject the writ p etition. 12. In view of the foregoing, no merit is found in this case and the same is dismissed without any order of cost.