Valid registration is necessary for a dealer to claim concessional rate of tax U/S 8 of Central Sales Tax Act, 1956: High Court of Tripura

Page HIGH COURT OF TRIPURA WP(C) No.1745 2017 Tripura Electricals. Situated at Mantribari Road P.O. Agartala PS West Agartala District West Tripura PIN 799 001. .. Petitioner(s). 1. The State of Tripura represented by Secretary Department of Finance New Secretariat Complex P.O. Kunjaban Agartala District West Tripura. 2. The Commissioner of Taxes Central Sales Tax Authority P.N. Complex P.O. Kunjaban Agartala District West Tripura. 3. The Superintendent of Taxes Charge IV Palace Compound P.O. Agartala West Tripura. .. Respondent(s). B_E_ F_O_R_E_ HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE JUSTICE MR. S G CHATTOPADHYAY : Mr. B N Majumder Sr. Advocate For Petitioner(s) Mr. Rajib Saha Advocate. For Respondent(s) Mr. A Nandi Advocate. Date of hearing & Judgment : 19th April 2021. : Mr. K Dey Addl. Gov. Advocate Whether fit for reporting : No. Page JUDGMENTAkil Kureshi CJ ). Petitioner has prayed for a direction to the respondents for issuing C Forms as required under Central Sales Tax Act 1956 in favour of the petitioner firm. 2] Brief facts are as under : The petitioner is a proprietary concern and originally one Sri Kalyan Prasad Saha was the proprietor of the concerned. The proprietary concern was engaged in buying and selling goods within the State of Tripura and for which it was registered as a dealer under the Tripura Value Added Tax Act 2004 and CST Act. The proprietor Sri Kalyan Prasad Saha was expired on 13th March 2014. According to the legal heirs of the deceased he had left behind a will executed on 24th January 2014 under which he had given his proprietary business by way of testamentary succession to his elder daughter Smt. Madhu Chanda Saha alias Misthu Saha after the death of his wife Smt. Mamata Saha. According to the petitioner Mamata Saha the wife of the deceased is still alive. However for convenience the elder daughter of the deceased i.e Madhu Chanda Saha is continuing the same business and entered into detailed correspondence and has been granted permissions by the department in the name of the proprietary concern. Page 3] On 27th April 2016 on behalf of the proprietary concern an application was made to the State Value Added Tax authorities for issuance of C Forms for the years 2015 16 in connection with the inter State purchases made by the petitioner firm. This would invite tax at reduced rates. However the respondents have not issued such C Forms presumably on the ground that the petitioner firm is not a registered concern. 4] Appearing for the petitioner learned Advocate Mr. Rajib Saha submitted that the respondent authorities were well aware about the death of the original proprietor of the concern and that his wife and daughter had inherited the business. It was on this basis that necessary permits for inter State purchase of goods were granted and assessments made which were also challenged before appellate authorities and appeals were entertained. It would therefore be too late in the day for the authorities now to contend that since the registration of the firm was not amended after the death of the proprietor C Forms cannot be issued. 5] On the other hand learned counsel Mr. A Nandi appeared for the respondents as a special counsel and opposed the petition. Referring to an affidavit in reply dated 29th September 2018 filed by the respondents he submitted that it was the duty of the petitioner to have the registration of the firm duly amended upon the sole proprietor dyeing. The petitioner Page failed to do so. Merely because at one stage certain C Forms may have been issued would not give a vested right to the petitioner to claim such certificates for subsequent transactions. Even an unregistered dealer is liable to pay taxes. 6] Having heard learned counsel for the parties and having perused documents on record we notice that Section 6 of the CST Act creates a liability on every dealer to pay tax as per the prescribed rates. Sub section 1) of Section 6 provides that subject to the other provisions of the Act every dealer shall with effect from such date as the Central Government may notify be liable to pay tax under the Act on all sales of goods other than electrical energy effected by him in course of inter State trade or commerce. Section 7 of the Act pertains to registration of dealers. Under sub section of Section 7 every dealer liable to pay tax under the Act has to get himself registered within such time as may be prescribed by making an application for such purpose. Sub sectionof Section 8 of the Act provides that every dealer who in course of inter State trade or commerce sells to a registered dealer goods of the description referred to in sub sectionshall be liable to pay tax which shall be three per cent of his turnover or at the rate applicable under laws of the State where the sale takes place whichever is lower. It is in this context the requirement for the Page petitioner to obtain C Form arises. However one thing may be noted that the liability to pay tax under Section 6 of the CST Act is not connected to the requirement of registration under Section 7. Registration of course is necessary for claiming concessional rate of tax on inter State sale. 7] With this background in mind we may refer to the provisions of T VAT Act. Section 19 of the T VAT Act pertains to compulsory registration of dealers. Sub sectionof Section 19 provides that no dealer while being liable to pay tax under the Act shall carry on the business unless he has been registered and possesses a certificate of registration. Every such dealer would make an application for registration as provided in sub section of Section 19. Such registration shall be granted if the Commissioner is satisfied about its requirements as provided in sub sectionsandof Section 19. Sub sectionof Section 19 provides that the Commissioner may from time to time amend any certificate of registration in accordance with information furnished or otherwise received and such amendment may be made with retrospective effect in such circumstances and subject to such restrictions and conditions as may be prescribed. Sub section of Section 19 pertains to situations where a registration shall be cancelled by the Commissioner. Clause of sub section provides that when the owner of an ownership business dies Page leaving no successor to carry on the business the same shall be cancelled by the Commissioner. 8] Under Rule 16 of the Tripura Value Added Tax Rules 2005a dealer can apply for amendment of certificate of registration. Sub rule of Rule 16 provides that when any registered dealer furnishes any information in accordance with sub section of Section 19 to the Superintendent of Taxes within 14 days of occurrence of the event along with the certificate of registration for amendment or cancellation thereof the concerned Superintendent of Taxes shall amend the certificate accordingly after making such inquiry as he deems fit. 9] In the present case we find that though the petitioner never applied for amendment of the registration after the death of the sole proprietor of the concern the information in this respect was available with the department and in any case even after the death of the proprietor the business was continued by the wife of the deceased with the help of the elder daughter who were to inherit the business in succession. 10] We have noticed that a valid registration is necessary for a dealer to claim concessional rate of tax on inter Sate sale of goods under Section 8 of CST Act. The demand of the petitioner therefore for the authorities to Page issue C Form without amending the registration therefore cannot be accepted. However as noted since the department has also virtually accepted the succession of the business upon death of the sole proprietor let the petitioner even now apply for amendment of the registration certificate. If such applications are filed within a period of two weeks from today with supporting documents the superintendent shall after following the procedure laid down in Section 19(5) T VAT Act and Rule 16 of the T VAT Rules shall dispose of such application as expeditiously as possible. If he does accept the application the same would have effect from the date of death of the sole proprietor. If such amendment in the registration is granted it would be open for the petitioner to re activate the request for grant of C Form on inter State transactions which shall be decided on With these observations and directions the petition is disposed of. Pending application(s) if any also stands disposed of. ( AKIL KURESHI CJ ) 

Summary: Liability to pay tax under Section 6 of the CST Act is not connected to the requirement of registration under Section 7. Registration under Section 8 of course, is necessary for claiming a concessional rate of tax on the inter-State sales. this was held in Tripura Electricals v. The State of Tripura and Ors [WP(C) No.1745/2017] in the High Court of Tripura by the division bench consisting of HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI and HON’BLE JUSTICE MR. S G CHATTOPADHYAY. Facts are the petitioner is a proprietary concern engaged in buying and selling goods within the State of Tripura. The proprietor expired and f the elder daughter of the deceased is continuing the same business and has been granted permissions by the department in the name of the proprietary concern. An application was made to the State Value Added Tax authorities for issuance of C-Forms for the years 2015-16 in connection with the inter-State purchases made by the petitioner firm, which had not been issued on the ground that the petitioner firm is not a registered concern. The counsel for the petitioner contended that necessary permits for the inter-State purchase of goods were granted and assessments were made. It was, therefore too late in the day for the authorities now to contend that since the registration of the firm was not amended after the death of the proprietor, C-Forms cannot be issued. The counsel appearing for the respondent submitted that it was the duty of the petitioner to have the registration of the firm duly amended upon the sole proprietor dying. Merely because at one stage certain C-Forms may have been issued would not give a vested right to the petitioner to claim such certificates for subsequent transactions. Even an unregistered dealer is liable to pay taxes. The Court made reference to Section 19 of the T-VAT Act pertains to compulsory registration of dealers and Under Rule 16 of the Tripura Value Added Tax Rules, 2005 a dealer can apply for amendment of certificate of registration. Sub-rule (1) of Rule 16 provides that when any registered dealer furnishes any information in accordance with sub-section (5) of Section 19 to the Superintendent of Taxes within 14 days of occurrence of the event along with the certificate of registration for amendment or cancellation thereof, the concerned Superintendent of Taxes shall amend the certificate accordingly after making such inquiry as he deems fit.  The court observed that “the petitioner never applied for amendment of the registration after the death of the sole proprietor of the concern, the information in this respect was available with the department and in any case, even after the death of the proprietor the business was continued by the wife of the deceased with the help of the elder daughter who was to inherit the business in succession.”