R.B. Misra, J.@mdashThe present trade tax revision has been preferred u/s 11 of the U.P. Trade Tax Act (called ""the Act"" in short) against the
order dated March 5, 1998 passed in Second Appeal No. 244 of 1993 (Year 1985-86).
1. Heard Sri Rajesh Agarwal, learned counsel for the applicant-revisionist and Sri S.D. Singh, learned Standing Counsel for the respondent.
2. The brief facts necessary for adjudication of the case are that the applicant-revisionist deals, in foodgrain, oil seed, etc., which are declared
commodity u/s 14 of the Central Sales Tax Act, 1956. In the relevant year applicant-revisionist purchased foodgrain from registered dealers and
obtained forms III-C(2) and III-C(5) from such dealers. The selling dealers have declared and admitted liability of tax. However, the said forms
III-C(2) and III-C(5) have been lost; the information above the same was given to the assessing officer on March 27, 1989. On the request of the
applicant-revisionist, the assessing authority made enquiries from the concerned assessing authorities of seller and received confirmatory letter that
the said forms in question have been issued to the applicant-revisionist. In the circumstances, the realisation of tax levied in the absence of forms
have been waived in view of circular dated January 15, 1988.
3. The circular dated January 15, 1988 is provided as below :
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4. In the above circular exclusive power of waiver has been given to the assessing officer. However, the Deputy Commissioner (Executive),
initiated proceeding u/s 10-B and thereafter passed the order indicating that the waiver of tax granted by the assessing officer is not justified
because certificate prescribed in the circular has not been furnished and order dated March 28, 1993 of the Deputy Commissioner passed u/s 10-
B is enclosed as annexure 2. Being aggrieved with the said order, the applicant-revisionist preferred second appeal before the learned Tribunal
which affirm the view of the Deputy Commissioner by its order dated March 5, 1998 (annexure 3).
5. The following questions has been submitted for the consideration :
(a) Whether, in view of the facts and circumstances, the Tribunal ought not have remanded back the case to the assessing authority to give further
opportunity and make further enquiries to obtain thecertificate as required under the circular dated January 15, 1988 when the selling dealer has
already paid the sales tax on the transaction and on the goods in question ?
6. It has been contended on behalf of the applicant-revisionist that in exercise of power u/s 10-B, the Deputy Commissioner has not correctly
appreciated the scope of circular dated January 15, 1988 and once the satisfaction has been derived by the assessing officer that for the goods in
question, the tax has already been paid by selling dealer, therefore, waiver granted by the assessing officer should have properly considered and
benefit should have been given to the petitioner.
7. In [19881 71 STC 1 (SC); 1988 UPTC 1204 (Commissioner of Sales Tax v. Prabhudayal Prem Narain) the Supreme Court has held that for
the failure to furnish form III-C(1) the assessee is not entitled to exemption and assessee cannot file any other evidence in place of the form for this
purpose.
The Supreme Court while taking the above view has reversed the 1982 UPTC 1094 (Prabhu Dayal Prem Narain v. Commissioner of Sales Tax)
where the court has held :
that the High Court in the impugned order was in error in directing the Tribunal to consider the matter on other evidence. The assessee is entitled
to exemption only on furnishing declaration forms. Since the assessee did not do so, he was not entitled to exemption."" (para 6 of UPTC ; page 3
of STC).
The Supreme Court in Commissioner of Sales Tax v. Prabhudayal Prem Narain [1988] 71 STC 1 has approved [1988] 71 STC 4 (All.) [App.] ;
1985 UPTC 1060 (Govind Ram Tansukh Rai & Co. v. Commissioner of Sales Tax) where if the assessee had not furnished the required
declaration forms in order to be entitled for exemption, the assessee could not file any other evidence which required to be considered by the
taxing authorities and Supreme Court in Commissioner of Sales Tax v. Prabhudayal Prem Narain [1988] 71 STC 1 has also relied on Kedarnath
Jute Manufacturing Co. Vs. Commercial Tax Officer, Calcutta and Others, : where ""the dealer could claim exemption on the sales to the registered
dealer by furnishing the declaration form and unless such declaration forms are furnished, the dealer was not entitled to any exemption and the
provisions of this nature was construed as mandatory"".
8. However, since the State Government has come with circular dated January 15, 1988 and undisputedly the tax has already been paid on the
goods in transaction in question, therefore, it is necessary that the assessing officer is treated to have power to give waiver but for that he has to
obey and observe the formalities and requirement of circular dated January 15, 1988 and therefore, view taken on March 5, 1998 by the learned
Tribunal is likely to be set aside. Therefore, the order dated March 5, 1998 is set aside and the matter is relegated to the assessee to verify and
obtain the required information and obtain certificate if necessary as required under circular dated January 15, 1988 to extend the benefit to the
applicant-revisionist accordingly. In these terms, the question of law is dealt accordingly.
9. A certified copy of this order shall be given to the learned counsel for the applicant who may produce the same to the concerned authority. The
assessing authority shall proceed with co-operation of the applicant-revisionist to expedite the matter preferably within four months.