COMMISSIONER OF SALES TAX Vs. JAGANNATH DUDADHAR

JUDGEMENT

(1.) The Commissioner of Sales Tax (hereinafter referred to as the Department for the sake of brevity) has filed CWP No. 18054/2004 under Articles 226/227 of the Constitution of India challenging the Orders dated 13.5.2004, 1.10.2004 and 14.10.2004 passed by the Appellate Tribunal, Sales Tax in which the Department had been directed to issue statutory Declaration Forms to the Respondent Jagannath Dudadhar. The Appellate Tribunal, Sales Tax, had also declined the Department s request to stay the operation of its Order during the pendency of the Reference under Section 45 of the Delhi Sales Tax Act, 1975 (DST Act for short). This Court has, time and again, disapproved the impleadment of Tribunals or any other Authority functioning in a judicial or quasi judicial capacity. Accordingly, we have suo moto struck off the Appellate Tribunal, Sales Tax, New Delhi from the array of Parties.

(2.) On 7.8.2003 Dudadhar applied for issuance of statutory Declaration Forms for the Assessment Years (AYs) 2001-2002 and 2002-2003 under the DST Act and Central Sales Tax Act, 1956 ( CST Act for short) aggregating Rs.67,73,26,240/- stated to be involving a sales tax revenue of over Rs. 13.3 crores. On 9.9.2003 the Sales Tax Officer (STO) issued a Deficiency Memo predicated on various demands remaining outstanding against Dudahdar in respect of the AYs 1989-1990 to 1993-1994, 1998-1999, 2000-2001 and 2001-2002 and for the wrong utilisation of Declaration Forms already supplied to it. The Department proposed furnishing of additional surety and for withholding issuance of Declaration Forms under the provisions of Rule 8(4)(c)(ii) of the DST Rules, 1975. On 17.10.2003 the STO rejected the applications of Dudadhar for issuance of the statutory Declaration Forms. On 23.1.2004 Dudadhar filed Appeals against the said Orders dated 17.10.2003. On 6.4.2004 the Assistant Commissioner (Appeals) - VII, Sales Tax, dismissed these Appeals and confirmed the Order of the STO observing inter alia that Dudadhar had made claims of sales to registered dealers who were either found not to be functional or to be non- existent; and because the majority of the claims for exemption were found not to be genuine. On 15.4.2004 this Order was assailed before the Appellate Tribunal, Sales Tax and these Appeals were accepted on 13.5.2004 The Tribunal, inter alia, held that the surety provisions applicable to the proper use and custody of ST-I could not be applied to the grant or refusal of ST-35 and ST-35/1 Forms in the absence of specific provision under Section 18 of the DST Act.

(3.) CWP No. 11487/2005 has been filed by Dudadhar invoking Articles 226/227 of the Constitution of India for mandating the Respondents to rectify two Declaration Forms in ST-35/1 or issue fresh Declarations in lieu thereof in conformity with the provisions of the DST Act and the Rules framed thereunder. As already adumbrated, on 10.9.2001, the Petitioner had applied to the Department for the supply of five Declaration ST-35/1 Forms to be issued to Bharat Petroleum Corporation Ltd. (BPCL). Consequent upon its request being turned down Dudadhar filed CWP No. 6976/2001 which was disposed of by Orders dated 21.11.2001. The concerned STO had submitted to the Court that a fresh speaking Order would be passed. On 22.12.2001 the STO called upon Dudadhar to furnish a surety for Rs. 50,00,000/- and Rs. 10,00,000/- under the Local and Central Acts respectively, which were duly furnished. While on this aspect of the dispute it may be mentioned, as submitted by Mr. Aurora, learned Counsel for the Department, that a surety produced by Dudahdar came to be withdrawn because the surety/Jainsons had stated that its signatures on the Deed had been forged. This event should not be lost sight of since the interests of the State in collection of sales tax should not be put to peril. Thereupon, on 24.12.2001, the STO issued five Declaration Forms in ST-35/1 in respect of transactions with BPCL but specifically restricting their user to AY 2001-02. Three of these Declaration Forms were issued to BPCL for supplies made during 2001-2002 and the remaining two Declaration Forms were issued to BPCL for supplies made during 2002-2003. On 29.3.2004 the STO rejected the two Declaration Forms while framing the assessment of BPCL for the AY 2002-2003 and created Sales Tax demands against BPCL for these transactions. It is undisputed that recovery of the sales tax from BPCL has been effected. BPCL had filed an Appeal against this assessment, in the course of which it had been directed to make a pre-deposit, which Orders had been assailed by BPCL by means of another writ petition. It was in these circumstances that Dudadhar had requested the STO to rectify or validate the two Declaration Forms unauthorisedly used by it during 2002-2003. This request having not been acceded to by the STO has occasioned the filing of CWP No. 11487/2005. It is admitted that Dudadhar had unilaterally scored out the AY 2001-2002 and instead written AY 2002-2003 on two of the five Declaration Forms supplied to it. The Department has also made a grievance of the fact that Dudadhar attempted to illegally use these two Declaration Forms ST-35/1 as ST-35 Forms.