IN THE GUJARAT VALUE ADDED TAX TRIBUNAL AT AHMEDABAD.

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1 ASSESSMENT Records destroyed due to heavy rain in July Company under BIFR Sick unit - Various decisions cited and discussed - Appeal restored by rectification and directed for fresh assessment for acceptance of Returns. IN THE GUJARAT VALUE ADDED TAX TRIBUNAL AT AHMEDABAD. Before: Hon. Mr. Justice K.A. Puj, President Shri Y.P. Bhatt, Member Shri N.A. Acharya, Member RECTIFICATION APPLICATION NO. 2 TO 6 OF 2013 IN S.A. NOS. 9 TO 13 OF 2011 with S.A. No. 9 to 13 of 2011 (After Restoration) M/S. SYMPHONY COMFORT SYSTEMS LTD.... Applicant v/s THE STATE OF GUJARAT... Opponent Appearance Shri Nayan Sheth, the learned Advocate for the Applicant Shri R.S. Parmar, the learned Govt. Agent for the Opponent Date:08/10/2013 ORDER Per Hon. Mr. Justice K. A. Puj, President:- The applicant / original appellant has filed this rectification application seeking rectification in the order passed by this Tribunal on 10/01/2013 in S.A. Nos. 9 to 13 of 2011, by exercising power under Section 79 of the Gujarat VAT Act. The applicant has also requested to give a reasonable opportunity of hearing to make submissions on merits of the case after taking on record the evidence submitted along with the rectification application. The applicant has further prayed for declaration that the applicant is entitled to the benefit of the circular dated 18/10/2005. Lastly the applicant has also prayed for the declaration for the order of Board for Industrial and Financial Reconstruction (BIFR) to the effect that unimplemented portion of the sanctioned scheme is to be implemented by all the concerned agencies is required to be followed. Without prejudice to the aforesaid prayers and in the alternative, the applicant has also prayed for the declaration that when records of the case were destroyed in heavy rain, the applicant should be assessed by accepting returns submitted by it, or that since the records have been destroyed in heavy rain, it should be assessed by taking into consideration the returns submitted for the earlier and subsequent period and assessment orders passed for these years. In other words, principles of best judgment assessment should be followed for assessing the applicant. In further alternative, the applicant has also prayed for the declaration that since the claim of Branch Transfer Transaction has already been accepted in the assessment orders passed under the Act, the same cannot be taxed under the CST Act, particularly because of the fact that the production of declaration form F was not mandatory and therefore the imposition of tax and interest on the branch transfer transactions is required to be set aside. 2. This Tribunal has passed an order on 26/02/2013 recording the submissions of Mr. Nayan Sheth the learned advocate appearing for the applicant that the applicant has preferred an application before the BIFR as the VAT Authorities have initiated recovery proceedings pursuant to the order passed by this Tribunal and the hearing of the said application was fixed before BIFR on 27/02/2013. In this view of the matter the hearing of the rectification application was adjourned to 16/04/2013. On 16/04/2013 Mr. Sheth has produced a bunch of orders which interalia includes the order passed by BIFR on 27/02/2013 in Misc. Application No. 68 of In the concluding part of the said order, the BIFR has observed that the order dated 10/01/2013 passed by this Tribunal was kept in abeyance till the matter is decided by the 3 rd Member in BIFR. The BIFR has also fixed the next date of hearing on 07/05/2013. This Tribunal has, therefore,

2 adjourned the hearing of rectification applications on 08/05/2013. These rectification applications have thereafter come up for hearing before this Tribunal on 24/07/2013 and on that day, it was submitted by Mr. Sheth that against the order passed by this Tribunal in S.A. Nos. 9 to 13 of 2011 on 10/01/2013, the applicant has preferred Tax Appeals Nos. 432 to 436 of 2013 and the said Tax Appeals are pending before the Hon. Gujarat High Court. In view of the pendency of the said Tax Appeals before the Hon. Gujarat High Court, this Tribunal has thought it fit not to entertain these rectification applications, however, Mr. Sheth has made the submissions that there are certain factual errors in the orders passed by this Tribunal and Tax Appeals filed before the Hon. Gujarat High Court are on the law points and as such there would not be any objection if this Tribunal hears these rectification applications. He has also submitted that the applicant has no objection even to withdraw the Tax Appeals filed before the Hon. Gujarat High Court so as to pursue these rectification applications. He has, therefore, submitted that the Tax Appeals were to come up for hearing before the Hon. Gujarat High Court on 02/08/2013 and the applicant has undertaken to withdraw the said appeals which are pending before the Hon. Gujarat High Court and for that purpose he has requested to adjourn the hearing of these rectification applications for couple of days. In this view of the matter, the hearing of these rectification applications was adjourned to 06/08/2013. Mr. Sheth, thereafter, at the time of hearing of these rectification applications has produced a copy of the order passed on 05/08/2013 by the Hon. Gujarat High Court in Tax Appeal Nos. 472 to 476 of 2013 permitting the applicant to withdraw the said Tax Appeals. All these rectification applications have therefore taken up for hearing. 3. It is the case of the applicant that the applicant had preferred S.A. Nos. 9 to 13 of 2011 before this Tribunal against the orders passed by the first appellate authority on 25/11/2011 for the assessment periods , , , and The principle dispute involved in all these second appeals is regarding imposition of tax at the full rate of tax on branch transfer transactions and interstate sales as the applicant could not produce declaration form F and Form C respectively. As the accounting records were destroyed in heavy rain on 13/07/2000 in Ahmedabad, the assessing officer has passed the orders under the Local Act raising huge demand of tax, penalty and interest by passing absolutely a non- speaking assessment order. The first appeals against the assessment orders were dismissed and therefore second appeals were preferred before this Tribunal which were registered as S.A. Nos. 44, 46, 48, 52 and 56 of In the meantime policy decision was taken by the Finance Department of the Govt. of Gujarat which was conveyed in a letter dated 18/10/2005 to the effect that those dealers of Ahmedabad whose books of accounts were destroyed in heavy rains in Ahmedabad in July 2000 should be assessed by accepting the returns submitted by them. As per the say of the applicant, the said circular was pointed out to this Tribunal in the earlier second appeals filed by the applicant and therefore this Tribunal was pleased to allow these second appeals by its judgment and order dated 17/12/2007 with a direction to the learned first appellate authority to decide the case keeping in mind the contents of the said circular dated 18/10/2005 and after giving reasonable opportunity of hearing to the applicant. While the first appeals were pending for adjudication before the learned first appellate authority, the applicant was declared as sick industrial company and a rehabilitation scheme was sanctioned by BIFR vide its order dated 13/01/2009 wherein amongst others the State Government was directed to assess the applicant by accepting the returns submitted by it and without insisting for the production of declarations in form C, D and F. Thereafter the applicant s financial position was improved and therefore in the hearing held on 08/10/2009, BIFR discharged the applicant from the purview of Sick Industrial Companies (Special Provisions) Act (SICA) and also directed that the un-implemented provisions of the sanctioned scheme shall be implemented by the concerned agencies. Since the order of BIFR of assessing the applicant by accepting the returns filed by it was not followed by the authorities and coercive recovery proceedings were initiated, the applicant filed Misc. Application before the BIFR requesting it to direct the learned commercial tax authorities to implement the order of BIFR and not to undertake coercive recovery proceedings against the applicant based on the assessment orders passed against it which were contrary to the sanctioned scheme of BIFR. BIFR rejected this application of the applicant and therefore appeal was preferred before appellate authority for Industrial and Financial Reconstruction (AAIFR). This appeal was allowed and the matter was referred to BIFR for fresh decision. After remand of the case, the Hon. Chairman and the Hon. Member

3 took different views and therefore an application was moved for referring the matter to the third Member. Since this application of referring the case to the third Member was not decided in spite of the lapse of considerable period of time, a writ petition was filed by the applicant before Hon. Delhi High Court. By an order dated 28/03/2012, Hon. Delhi High Court directed the Chairman of BIFR to take decision on the application of the applicant for referring the case to the third Member within fifteen days of the receipt of the order of the Hon. Delhi High Court. In spite of this order of Hon. Delhi High Court no further proceedings took place before BIFR and therefore the applicant was constrained to file a fresh application before Hon. Delhi High Court. By its order dated 24/07/2012 the Hon. Delhi High Court directed BIFR that the hearing should be fixed in the first half of August 2012 and the court expected that the opinion shall be rendered by the third Member within one month thereafter. 4. It is also the case of the applicant that taking note of the proceedings before BIFR, this Tribunal by an order dated 25/02/2011 granted stay order against recovery of dues. The stay was subsequently extended from time to time. However, for the first time at the hearing held on 30/11/2012 the learned Govt. Agent insisted for payment towards the assessed dues for the admission of the second appeals and granting of stay order against recovery of dues in spite of the fact that case of the applicant was pending before BIFR, by relying upon the judgment in the case of Triveni Structurals Ltd v/s. Commissioner of Trade Tax, U.P. Lucknow 11 VST 447 (All.). The applicant sought time to produce contradictory judgment and hence the hearing was adjourned to 04/12/ It is the case of the applicant that a reference to the order dated 30/11/2012 of this Tribunal reveals that the hearing was then fixed on 04/12/2012 only for the purpose of admission of the second appeals and granting stay order. On 04/12/2012 adjournment was sought by the applicant because all the orders of BIFR were not received by the applicant. Therefore, this Tribunal has adjourned the matter for hearing on 14/12/2012. Thus the hearing of application for admission of second appeals and stay order against recovery of dues was fixed by this Tribunal on 14/12/2012. At the time of hearing on 14/12/2012 all the relevant orders and supporting judgments were submitted showing proceedings before BIFR, AAIFR and Hon. Delhi High Court. It was specifically pointed out that in spite of the orders of Hon. Delhi High Court the proceedings before BIFR have remained inconclusive. On 14/12/2012 by relying upon the proceedings before BIFR it was submitted that no payment against assessed dues should be insisted upon for admission of second appeals and granting of stay order against the recovery of dues. It was also pointed out that the earlier order of BIFR was to the effect that unimplemented provisions of the sanctioned scheme shall be implemented by all the concerned agencies having attained finality and hence the applicant has to be assessed by accepting returns. It is therefore the case of the applicant that as such there is no liability against the applicant for which it may be made liable to pay any amount for admission of second appeals and granting stay order against recovery of dues in spite of the pending proceedings before BIFR. The arguments on behalf of the applicant were restricted to this issue as to whether the payment should be insisted from the applicant for admission of second appeals and granting of stay order in spite of pending proceedings before BIFR. It was also the case of the applicant that in the board of the cases to be heard by this Tribunal on 14/12/2012, the case of the applicant was listed for hearing for granting of stay order. Therefore at the hearing held on 14/12/2012, the total arguments on behalf of the applicant and for that matter even of the respondent were restricted on admission of second appeals and granting of stay order to the applicant based on the proceedings pending before BIFR. Since various orders and judgments relating to proceedings before BIFR were produced before this Tribunal on 14/12/2012 and arguments were canvassed based on those orders for admission of second appeals and granting of stay order without insisting for any payment, this Tribunal felt that it will have to pass a detailed speaking order and therefore the order was reseved with a direction that till the order is pronounced the stay granted earlier shall continue. It is also the case of the applicant that only the hearing of application for admission of second appeals and stay order was undertaken and this Tribunal had also stated in the order dated 14/12/2012 that this Tribunal is required to pass a detailed speaking order. It was therefore conveyed that detailed speaking order on application for admission of second appeals and stay order would be passed and it was never contemplated to pass the final judgment on the second appeals filed by the applicant. As per the

4 case of the applicant, on 14/12/2012 neither the applicant nor the respondent made any submission on the merits of the case. 6. The applicant has therefore contended in the present rectification application that while the matters stood thus, the applicant has received a judgment of this Tribunal dated 10/01/2013 finally adjudicating the second appeals of the applicant on merits. The tax and interest imposed in all the years in dispute have been confirmed and penalty imposed has been quashed and set aside. According to thi Tribunal the applicant is not entitled to the benefit of any sanctioned scheme as the applicant has been discharged from the purview of SICA. Therefore, it has been concluded that the contention of the applicant that it should be assessed by accepting the returns submitted by it cannot be accepted. It is therefore contended that the judgment dated 10/01/2013 of this tribunal finally deciding the second appeals of the applicant has been passed inadvertently by this Tribunal without hearing the applicant or the respondent on the merits of the case. It was further contended that in the judgment the arguments of the advocate of the applicant have been noted, they appear to have been taken from the statement of facts filed along with the second appeal memo, because no argument was orally advanced on behalf of the applicant because on that date as such the final hearing of the second appeals was not taken up by this Tribunal. 7. It is further contended by the applicant that in para 8 of the judgment dated 10/01/2013 of this Tribunal, reliance has been placed on the written submissions given by the learned Govt. Agent. The detailed submission so relied upon are the detailed submissions given by the Govt. Agent on 27/01/2011. Even a reference to these written submissions show that even in these written submissions, the prayer was for not admitting the second appeals and granting stay order without full payment of the dues raised in assessments. Even after this written submission, stay orders were issued by this Tribunal from time to time. It is therefore contended that the judgment has been passed by this Tribunal on 10/01/2013 without giving proper opportunity of hearing to the applicant and hence it is in violation of the principles of natural justice. The reliance was placed by the applicant on the decision of the Hon. Apex Court in the case of Manohar S/o. Manikrao Anchule vs. State of Maharashtra and Another JT 2013 (1) SC In the above background of the matter and in view of the fact that the judgment dated 10/01/2013 passed by this Tribunal was without hearing the applicant on merits, Mr. Nayan Sheth the learned advocate appearing for the applicant has submitted that following mistakes have inadvertently crept in the judgment of this Tribunal. 8(a) In para 8 of the judgment, this Tribunal has noted the submissions of the learned Govt. Agent that furnishing of statutory forms is mandatory under the CST Act and hence looking to the State Government s revenue, the assessment cannot be concluded by accepting returns submitted by the applicant. Similar was also the conclusion of the learned first appellate authority in the first appeal orders passed by him. Mr. Sheth has further pointed out that the major claim of the applicant is regarding branch transfer transactions. What is important is that the production of declarations in Form F for claiming of branch transfer transactions was not mandatory for the years in dispute. He has pointed out that only on and from 11/05/2002 Section 6A of the CST Act has been amended to make production of declarations in Form F mandatory for claiming branch transfer transactions. Thus, branch transfer transactions can be accepted even in absence of declarations in form F. Thus the express provisions of the CST Act have been misunderstood and as a result thereof, even though the claim of branch transfer transactions has been accepted in the assessment orders passed under the Local Act, the same have been taxed in the assessment orders passed under the CST Act because declarations in form F were not produced. 8(b) In para 13 of the judgment it is stated that till the assessment orders were passed the applicant had never made a claim for assessing it by accepting returns because of the destruction of record in flood and it is only after it came to know about the policy decision of the State of Gujarat in the letter dated 18/10/2005 in this respect that it has tried to raise boggy of destruction of records. Mr. Sheth has submitted that right from inception the applicant has been contending that it should be assessed by accepting returns submitted by it. Various evidences were produced to establish the destruction of records in heavy rain. Even the authorities have not disputed the claim of destruction of records in heavy rain. It is only because

5 the letter dated 18/10/2005 referred to evidences by way of FIR and letter of Collector that they may be belatedly produced. However, ultimately all the evidences stated in the letter dated 18/10/2005 were for ensuring that only dealers whose records were destroyed in heavy rains gets the benefit of that letter of doing assessment by accepting returns. Since in the case of the applicant, the fact that records were destroyed in heavy rain is neither doubted nor disputed, the applicant was entitled to the benefit of the circular in spite of production of certain evidences belatedly. Mr. Sheth has further submitted that the conclusion that the claim for assessment based on returns was made only after getting the knowledge of the letter dated 18/10/2005 is not correct which can be observed from the following evidences. 8(b)(i) The applicant has been contending right from inception that it should be assessed by accepting returns. Copies of the letters addressed by the applicant to the concerned authorities from time to time proving this fact are produced at annexure A to the rectification application. 8(b)(ii) Many evidences proving destruction of records in flood were produced much prior to 18/10/2005. Copies of evidences so submitted are collectively marked at annexure B to the rectification application. 8(b)(iii) Reference to earlier first appeal orders dated 30/12/2004, which were set aside by this Tribunal in its earlier judgment dated 17/12/2007, clearly show that in the first appeals which were heard prior to 18/10/2005 also contention was canvassed for assessing the applicant by accepting returns. 8(c) Again in para 13 of the judgment this Tribunal has found considerable strength in the submission of the learned Govt. Agent that the applicant has not made any effort to collect requisite details. Mr. Sheth has however submitted that while so concluding this Tribunal has lost sight of following facts. 8(c)(i) In spite of compete destruction of records the applicant could produce certain declarations and records before the learned assessing officer based on which partial benefit of exemption or concession in the rate of tax has been given in the assessment order. 8(c)(ii) In the assessment orders passed under the GST Act, claim of branch transfer transactions has been accepted. Mr. Sheth has produced copies of assessment orders passed under the Local Act for all the years in dispute at annexure D collectively to this rectification application. 8(c)(iii) The applicant has tried to gather information about the assessments of its various branches which show that in various States the claim of receipt of goods by way of branch transfer transactions and the assessment to tax under the Local Act on the subsequent sales by the branches has been accepted. These documents are annexed at Annexure E to this rectification application. 8(d) In para 16 of the judgment, this Tribunal has, by relying upon the order of BIFR dated 27/09/2010 concluded that the effect of net worth turning positive would be that the unimplemented portion of the scheme cannot be rolled back and such unimplemented portion of the scheme cannot be implemented. Mr. Sheth has however submitted that the decision of BIFR relied upon by this Tribunal has been set aside by AAIFR by its order dated 09/02/2011. Thus reliance has been placed on an order of BIFR which is already set aside by AAIFR. 8(e) At the end of para 17 of the judgment, it has been stated that pursuant to the order of the Hon. Delhi High Court, BIFR had fixed the matter on 18/08/2012 and thereafter adjourned to 21/09/2012. But thereafter what happened subsequently was not brought to the notice of this Tribunal. He has submitted that this Tribunal was appraised of the pending proceedings before BIFR by submitting from time to time the letters of Kalayani and Associates which was pleading the case of the applicant before BIFR. Apart from this, in order to establish that the applicant was factually pursuing remedies before BIFR, at the time of hearing on 14/12/2012 the applicant had brought to the notice of this Tribunal the writ petition and subsequent application moved by Hon. Delhi High Court as well as the orders passed by Hon. Delhi High Court and it was specifically submitted before this Tribunal that in spite of the orders of Hon. Delhi High court, the matter is still lying pending before BIFR and no further orders have been passed and thus the applicant was helpless in the matter. 9. Mr. sheth has further submitted that this Tribunal has committed a mistake of fact in concluding that the claim for accepting the returns because of destruction of records in flood was made for the first time

6 after getting knowledge of the decision of the State Government. However, the evidences produced along with this rectification application show that this is not correct. The applicant is therefore entitled to the benefit of the letter dated 18/10/ Mr. Sheth has further submitted that in the assessment orders passed under the Act, the claim of branch transfer transactions has been accepted as can be seen from the assessment orders produced at annexure D to this rectification application. However, in the assessment orders passed under the CST Act, the branch transfer transactions have been taxed on a misunderstanding that production of declarations in form F is mandatory. This Tribunal has also taken note of this provision by way of submission of the learned Govt. Agent. 11. Mr. Sheth has submitted that only on 11/05/2002 Section 6A of the CST Act was amended to make productions of declarations in form F mandatory for claiming branch transfer transactions. Prior to that date, the production of form F was not mandatory. Number of decisions were rendered to this effect and even Central Government had so clarified by a letter dated 22/01/1974 issued by the Deputy Secretary to the Govt. of India to Finance / Revenue Secretaries of all State Governments and Union Territories. A copy o this letter is also produced at annexure F to this rectification application. 12. In view of the above facts, Mr. Sheth has submitted that the judgment of this Tribunal is contrary to the clear provisions of law and number of decisions and circular to that effect and thus an apparent mistake has crept in the judgment of this Tribunal in disallowing the claim of branch transfer transactions because of non production of F forms though it was not mandatory to produce F forms, particularly when the claim of branch transfer transactions has been accepted in the assessment orders passed under the Act. 13. Mr. Sheth has further submitted that for the periods prior to 11/05/2002 for which the impugned second appeals were filed, all the branch transfer transactions have been accepted, in the assessment orders passed under the Act and hence the imposition of tax in the assessment orders passed under the CST Act by treating the transactions as interstate sale is contrary to the decision of the Hon. Bombay High Court in the case of K. Mohan & Co. (Exports) vs. M.H. Vatnani, Asst. Commissioner of Sales Tax 126 STC 126 (Bom.). Mr. Sheth therefore submitted that mistake committed by this Tribunal in passing the judgment dated 10/01/2013 is required to be rectified under Section 79 of the VAT Act. He has also relied on the decision of the Hon. Apex Court in the case of Honda Siel Power Products Ltd vs. Commissioner of Income Tax 12 VST 500 (SC) wherein, on an issue in dispute, a judgment was pointed out to the Tribunal but this Tribunal missed out the judgment and therefore rectification application was accepted by the Tribunal to rectify this mistake. On an appeal by the department, the Hon. High court set aside the rectification order on the ground that power of rectification of mistake was not equivalent to the power of review or recall the order sought to be rectified. Reversing the judgment of the Hon. High Court, while explaining the provisions of Section 254(2) of the Income-Tax Act, 1961 relating to rectification of mistake from record, the Hon. Apex court has observed that the purpose behind the enactment of Section 254(2) is based on the fundamental principle that no party appearing before the Tribunal be at assessee or the Department should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. When prejudice results from an order attributable to the Tribunal s mistake, error or omission, then it is the duty of the Tribunal to set it right. 14. Mr. Sheth has also relied on the decision of the Hon. Apex Court in the case of Asst. Commissioner, Income tax, Rajkot vs. Saurashtra Kutch Stock Exchange JT 2008 (10) SC 306. In this case a decision was rendered by the Tribunal contrary to the decision of Hon. High Court which was by mistake not cited before the Tribunal. This mistake was rectified by the Tribunal. A writ petition by the department against the judgment of Tribunal was rejected by Hon. High Court and therefore an appeal was preferred before the Hon. Apex Court. The Hon. Apex Court has upheld the decision of the Tribunal to rectify the mistake by holding that not bringing to the notice of the Tribunal a decision of jurisdictional court i.e. High Court before the Tribunal was an error apparent on the face of the record which could be rectified. Before the Hon. Apex Court, a contention was canvassed that once a judgment is pronounced or order is made, a Court, Tribunal or Adjudicating Authority becomes functus officio. Such judgment or order is final and

7 cannot be altered or changed. Not accepting this contention, the Hon. Apex Court made a pertinent observation that rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality. 15. Mr. Sheth has also relied on the decision of the Hon. Gujarat High Court in the case of State of Gujarat vs. Ajay Trading Co., 83 STC 354 (Guj.) wherein it is held that when prescribed rate was 7% but by mistake tax was levied at the rate of 8% than it is a mistake which can be rectified by the Tribunal. Mr. Sheth has also relied on te decision of this tribunal in the case of M/s. H.G. Exim Pvt. Ltd vs. The State of Gujarat in Rectification Application No. 7 of 2009 decided on 17/07/2009. In this case the second appeal of the applicant was substantially dismissed with partial relief by way of reduction of penalty from 150% to 75% being given by the Tribunal. A rectification application was filed by the dealer on the ground that certain arguments advanced by the applicant were not considered or were not properly considered by the Tribunal. It was pointed out that the imposition of penalty in the provisional assessment order passed under Section 32 of the VAT Act and that too without issuing notice was illegal. This Tribunal found that from the notes of arguments it did not appear that this argument was actually addressed in the course of argument. Still this Tribunal held that when there is some pleading on the point, the applicant is entitled to say that this point has not been considered. In that event it may amount to a factual mistake and hence it is required to be considered. 16. Mr. Sheth has also relied on the decision of this Tribunal in the case of Inox India Ltd vs. the State of Gujarat 2010 GSTB 300. In this case the dealer had raised additional ground to grant deduction of tax amount under Section 8A(1) of the CST Act for the interstate sales for which C form declarations cannot be produced. This Tribunal did not accept the contention that during the oral argument this contention was canvassed. Still this Tribunal has decided to rectify the order as the issue was raised in second appeal. 17. Mr. Sheth has also relied on the decision of this Tribunal in the case of M/s. Yashvijay and Co. vs. The State of Gujarat GSTB 312 wherein this Tribunal has held that under Section 72 of the GST Act, 1969 which was similar to Section 79 of the VAT Act, a mistake of fact as well as law which was apparent on record can be rectified. He has therefore submitted that following apparent errors which have been inadvertently committed by this Tribunal in the judgment dated 10/01/2013 should be required to be rectified. 17(a) On 14/12/2012 hearing was fixed for deciding the application for admission of second appeals and stay order based on proceedings before BIFR and no arguments were canvassed on the merits of the case. Thus disposal of second appeals on merits is without hearing the applicant and thus in breach of principles of natural justice. 17(b) An apparent error of fact has been committed by this tribunal in concluding that claim of accepting returns because of destruction of records in heavy rain was made by the applicant only after knowing the policy decision of the State Government. Such a claim was made right from the time of assessment. Though few evidences were produced belatedly with a view to comply with the evidences enumerated in the letter dated 18/10/2005, many evidences were produced even before the letter dated 18/10/2005. The production of evidences for proving destruction of records in heavy rain was meant to give benefit to dealers who had lost records in heavy rain and the fact that records of the applicant was destroyed in heavy rain has never been disputed by the authorities. Thus, denial of the benefit of the circular of the State Government of assessing the dealers whose records were destroyed in heavy rain by accepting returns is on misconstruction of facts. 17(c) An apparent error of fact has been committed by this Tribunal in holding that no effort was made by the applicant for claiming exemption and concession in rate of tax. The applicant has made strenuous efforts based on which the claims of the applicant were partially allowed in assessment. Some evidences procured subsequently were not produced earlier because the applicant felt that they could be produced only after the appeals were admitted for regular hearing. 17(d) An apparent error of fact has been committed in accepting the contention of the respondent that production of declarations in form F was mandatory. Till 11/05/2012 even in absence of declarations in form

8 F, the claim of branch transfer transactions could be accepted. Since the claim is accepted in the assessment orders passed under the Local Act and tax has been imposed in the assessment orders passed under the CST Act on the ground that it is mandatory to produce declarations, an apparent mistake has been committed by this Tribunal. 17(e). An apparent error has been committed by this tribunal in not considering the decision of the Hon. Bombay High Court in the case of M/s. K. Mohan & Co. (Exports) (supra) that when an assessment order was passed under the Act, the branch transfer transactions were accepted they cannot be taxed in the assessment orders passed under the CST act by treating the same as interstate sales. 17(f). An apparent error has been committed by this Tribunal in relying upon an order of BIFR dated 27/09/2010 which has already been set aside by AAIFR by an order dated 09/02/ Mr. Sheth in support of his submissions that only on 11/05/2002 Section 6A of the CST Act was amended to make production of declarations in form F mandatory for claiming branch transfer transactions, relied on the decision of the Hon. Apex Court in the case of M/s. Ashok Leyland Ltd Vs. State of Tamil Nadu and Another 134 STC 473 wherein it is held that 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 interstate sale. For this purpose also Parliament advisedly used the expression deemed. The amendment was necessitated not only to make the dealer files such a declaration imperatively but also to see that such movement of goods becomes interstate sale by raising a legal fiction as having been occasioned in the course of interstate sale. In other words, if, a declaration is filed and, on an enquiry made pursuant thereto or in furtherance thereof, particulars furnished are found to be correct by the assessing authority, the result thereof which is evidenced by the expression thereupon shall, in view of the legal fiction created, would be a transaction otherwise than as a result of an interstate sale. Once such a fiction is drawn, the same would continue to have its effect not only while making the order of assessment in terms of the State law but also for the purpose of invoking the powers of assessment contained in Section 9(2) of the CST Act. The legal fiction continues to have effect even in relation to the powers of reassessment contained in the State tax Law e.g. Section 16 of the Tamil Nadu General Sales Tax Act, Mr.Sheth further relied on an old decision of this Tribunal in the case of M/s.Movia Oil Mills vs. The State of Gujarat (SA No. 85 of 1985 decided on 15/06/1987) wherein it is held that though the declaration in Form F can help the appellant in proving his point, absence of the same cannot automatically lead the department to disallow the appellant s claim in respect of the disputed transaction. The only thing that could happen is that when the declaration in Form F is not produced by the appellant on account of the commission agent going out of business, the appellant has to adduce some oher evidence before the assessing authorities to show that the transaction was a consignment only. 20. He has therefore submitted that the present rectification applications deserve to be allowed and reliefs prayed for in the second appeals are required to be granted. 21. Mr. R.S. Parmar the learned Govt. Agent appearing for the opponent on the other hand strongly opposed all these rectification applications filed by the applicant and submitted that this Tribunal has decided S.A. Nos. 9 to 13 of 2011 absolutely in accordance with law and no mistake whatsoever has been committed by this Tribunal. He has further submitted that by preferring these rectification applications, the applicant actually wants rehearing of the appeals which is not permissible within the scope of Section 79 of the Act. He has further submitted that whether the proof of declaration in form F is mandatory or not is not the question before this Tribunal while deciding the appeals. The Tribunal has merely recorded the submissions made by Govt. Agent and the Tribunal s order is not exclusively based on those submissions. It is true that by virtue of an amendment in Section 6A with effect from 11/05/2002 if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale. However, it does not mean that in absence of declarations in form F the assessing authority must accept that the transaction in question is otherwise than interstate sale.

9 The applicant is duty bound to produce other evidence to establish that the transactions in question were not by way of interstate sales but they are simply branch transfers. He has further submitted that this Tribunal was not at all to call upon to decide as to whether the production of declarations in Form F is mandatory. Production of F forms, however, assumes significance in absence of any other evidence and for this purpose he has invited the attention of this Tribunal to the provisions contained in sub-section (2) of Section 6A of the CST Act, which says that if the assessing authority is satisfied after making such enquiry as it may be necessary that the particulars contained in the declaration furnished by a dealer under subsection (1) are true, he may, at the time of, or at any time before the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which declaration relates shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale. Based on this provision Mr. Parmar has submitted that if the declaration in form F is not furnished by the applicant, in that case it is difficult for the assessing authority to make any enquiry with regard to particulars which are required to be incorporated in the declarations. He has therefore submitted that even if the production of declarations in Form F becomes mandatory after 11/05/2002, even prior to that, in view of sub-section (2) of Section 6A, such declaration is required to be furnished along with the evidence of dispatch of such goods. Since the applicant has failed to provide any other documentary evidence in support of its contention that the transactions in question were occasioned otherwise than as a result of sale, this Tribunal has rightly considered the said transactions as interstate sales. 22. Mr. Parmar has further submitted that the affidavit filed by the Director of the applicant company viz. Shri Achal Bakeri nowhere refers to the declarations in form F as lying in the godowns and the same were destroyed in heavy rain. The documents referred to in the said affidavit are only accounting materials such as sales bills, purchase bills, sales and purchase registers, stock registers, delivery challans and other accounting literature such as cash book, ledgers etc. He has, therefore, submitted that there is nothing on record which shows that the applicant has received declarations in form F and the same were destroyed in heavy rain. 23. He has further submitted that letter dt. 25/06/2003 addressed to the Sales Tax Officer, Kadi produced at page 46 of the rectification application was not forming part of the appeal papers and hence applicant cannot rely on such document which are not forming part of the appeal papers. The applicant has referred to this letter only with a view to show that in the year 2003, it was brought to the notice of the sales tax officer that in the year 2000, when there was heavy rainfall in the Ahmedabad city and Gujarat, all the books of the accounts and other relevant records including declarations etc. were completely destroyed. 24. He has further submitted that simply because while framing the assessment under the Local Act, the applicant s claim regarding branch transfer was accepted and the amount of such branch transfer was reduced from the total turnover, does not mean that the assessing officer has, after application of mind, accepted the said claim of the applicant. For this purpose he has invited the attention of this Tribunal to the provisions contained in Section 87 of the GST Act which deals with certain sales and purchases not to be liable to tax. It says that nothing in this Act or the Rules made there under shall be deemed to impose or authorize the imposition of tax on any sale or purchase of any goods, whether such sale or purchase takes place, (i) in the course of interstate trade or commerce, or (ii) outside the State or, (iii) in the course of imports of the goods in the territory of India or the export of the goods out of such territory, and the provisions of the Act and the Rules shall be read and construed accordingly. He has therefore submitted that whether the transaction in question is sale or branch transfer or export, the value thereof will have to be reduced from the turnover assessable under the Local Act. 25. He has further submitted that the decision of the Hon. Bombay High Court in the case of K. Mohan & Co., (Exports) vs. M.H. Vatnani, Asst. Commissioner of Sales Tax and Others (supra) relied upon by the applicant is distinguishable on facts as in that case the Hon. Bombay High Court has decided the issue only with regard to validity of reopening of the assessment. It was made very clear in para 13 of the said judgment that since the petition was allowed on the limited ground of not fulfilling the conditions set out in Section 35(1)(b)of the Bombay Sales Tax Act, the Hon. Bombay High Court has not dealt with various arguments advanced and various decisions cited by the learned counsel appearing for the petitioners. The

10 Hon. Bombay High Court has not decided the issue regarding allow-ability of the deduction under Section 5(2) of the CST Act, Mr. Parmar has further submitted that as per the provisions contained in Section 72 of the GST Act, the rectification of an order is permissible only when there is any mistake of fact apparent from the record. Here in the present case there is no mistake of fact apparent from the record and hence the present rectification applications deserve to be rejected. 27. Mr. Parmar further submitted that reliance placed by the applicant on the letter dated 18/10/2005 issued by the Joint Secretary (Taxes), Finance Department to the Sales Tax Commissioner is wholly irrelevant and even otherwise the said letter pertains to the period between April 2000 to July 2000 and if the records pertaining to this period were destroyed in the heavy rain in that case only on production of necessary documents, assessment for the period up to July 2000 was to be made under Section 41(2) of the GST Act. The period covered under the present rectification applications does not fall within this period and hence the applicant cannot derive any support from this letter. 28. He has further submitted that all appeals were earlier decided by this Tribunal vide its order dated 17/12/2007 and the matters were remanded. Till that period, no reliance was placed on this letter issued by the Finance Department. Even otherwise the said letter is in the form of intra-departmental communication and the applicant is not supposed to take any recourse of that letter. Based on this letter, the applicant cannot invoke the principle of promissory estoppels against the statute. He has further submitted that the applicant has not furnished any details such as survey report of District Collector, FIR, affidavit, panchnama, certificate from the Fire Brigade which are contemplated in the said circular and hence the said circular letter would not render any assistance to the applicant. All other circulars and notifications pressed into service by the applicant are subject to certain conditions which have not been fulfilled by the applicant. 29. Mr. Parmar further submitted that the applicant has not made any effort to procure the declarations in form F. He has also submitted that certain statements indicate that such declarations are to be kept in the cupboard and hence there is no question of such declarations being destroyed in heavy rain. He has further submitted that certain forms produced by the applicant were found to be tampered with and hence the applicant does not deserve any relief in these rectification applications. 30. Lastly he has submitted that if these rectification applications are allowed, it would amount to review of the order passed by this Tribunal in S.A. Nos. 9 to 13 of 2011 which is not permissible while exercising powers under Section 72 of the GST Act. For this purpose he relied on the decision of the Hon. Apex Court in the case of Deva Metal Powders Pvt. Ltd vs. Commissioner, Trade Tax, UP [2007] 10 VST 751 (SC) wherein it is held that in order to attract the application of section 22 of the UP Trade Tax Act, 1948, under which mistakes apparent from the record are rectifiable, the mistake must exist and must be apparent from the record. Mistake means to take or understand wrongly or inaccurately, to make an error in interpreting, it is an error, a fault, a misunderstanding, a misconception. Apparent means visible, capable of being seen, obvious, plain. A mistake which can be rectified under Section 22 is one which is patent, obvious and whose discovery is not dependent on argument or elaboration. Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. It is further held that a mistake capable of being rectified under Section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. A decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications. In the case before the Hon. Apex Court, the appellant dealt in aluminium powder, which in the original assessment order under the CST Act, 1956, was treated as metal and taxed at the rate of 2.2%. The assessing officer rectified the assessment under Section 22 of the Act on the basis of the Hon. Supreme Court decision in Hindustan Aluminium Corporation Ltd vs. State of Uttar Pradesh [1981] 48 STC 411 holding that only primary metal was covered under the entry all kinds of minerals, ores, metals and alloys including sheets and circles and levied tax treating the aluminium powder as an unclassified item. The

11 High Court held that a decision of the court could be ground for rectification in terms of Section 22 of the Act. On appeal to the Hon. Supreme Court, while reversing the decision of the Hon. High court, it was held that what the Revenue intended to do by the rectification was precisely the substitution of the order which was not permissible under the provisions of Section 22 and the Hon. High court was not justified in holding that there was a mistake apparent on the face of the record. Based on this decision, Mr. Parmar has submitted that it is not permissible for this Tribunal to take a different view from the view already taken while disposing of the second appeals. He therefore submitted that the applicant has rightly challenged this order initially by way of filing tax appeals before the Hon. Gujarat High Court. Since the applicant has withdrawn the said appeals under misconception of law, this Tribunal should not allow these rectification applications by taking altogether a different view. He has therefore submitted that the rectification applications filed by the applicant are required to be rejected. 31. Having heard Mr. Nayan Sheth the learned advocate appearing for the applicant/original appellant and Mr. R.S. Parmar the learned govt. Agent appearing for the opponent State of Gujarat and having considered their rival submissions, in light of the statutory provisions and the decided case law on the issues raised in this rectification applications and having gone through the documentary evidences produced before this tribunal, it appears to this Tribunal that as per the order passed by this Tribunal on 30/11/2012 in S.A. Nos. 9 to 13 of 2011, the said appeals were adjourned to 04/12/2012 for the purpose of admission of appeals and for deciding as to whether the stay against recovery of outstanding demand earlier granted by this Tribunal, in view of the pendency of proceedings before BIFR and subsequent discharge of the applicant from the purview of SICA on the improvement of the financial positions of the applicant should be continued or not. Thus, the hearing of Second Appeals fixed on 14/12/2012 was restricted to these two issues only. The final hearing of these appeals on 14/12/2012 was never contemplated by either of the parties and not even by this Tribunal. Precisely for this reason, this Tribunal has observed in its order dated 14/12/2012 that this Tribunal is required to pass a detailed speaking order on the issues raised by the applicant and hence the order was reserved. In this background, if we consider the order passed by this Tribunal on 10/01/2013 finally disposing of the said appeals, it appears to us that an inadvertent mistake was committed by this Tribunal, because of which the applicant was deprived of an opportunity of being heard and of filing certain relevant documents before this Tribunal, We therefore deem it fit to recall the said order dated 10/01/2013 passed by this Tribunal and restore the said appeals to the file. We, however, with the consent of the parties take up the said appeals for final hearing so as to give proper justification to the issues raised by the applicant in the Second Appeals and also to the documents produced along with the present rectification applications. 32. So far as the first prayer made by the applicant in the rectification application is concerned, this Tribunal has virtually recalled its order dated 10/01/2013 passed in S.A. Nos. 9 to 13 of 2011 and hence to this extent, the said payer is granted. 33. The second prayer made by the applicant is with regard to providing a reasonable opportunity of hearing to make submissions on the merits of the case after taking on record the evidences produced along with the rectification applications. Since this Tribunal has allowed the applicant to make its submissions on merits and has also gone through the documents produced along with this rectification application, though with certain reservations as many of the documents were not forming part of the record of the second appeals, the said documents were certainly having bearing on the issues raised in the appeals and for deciding the said issues on merits, the second prayer is therefore deemed to have been granted. 34. The third prayer is with regard to the applicant s entitlement to the benefit of the circular dated 18/10/2005. This issue was considered by this Tribunal at length while deciding the appeals on 10/01/2013. The applicant s grievance, however, was that the applicant was not heard on this issue and the said issue was decided against the applicant without hearing the applicant. 35. This Tribunal has taken the view in its order dated 10/01/2013 that the assessment for the year , , , and were completed on 31/03/2003 and assessment for the period was completed on 26/03/2004. In none of these assessments, the applicant has raised

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