STATE OF ANDHRA PRADESH Vs. GAYATHRI ELECTRONICS

JUDGEMENT

(1.) THE short question that falls for consideration of this Court in these T. R. Cs. is whether "g" forms filed after submission of the returns can be taken note of by the assessing authority for the purposes of granting concessional rates.

(2.) THE respondent is manufacturing circuit boards. It supplies the same to E. C. I. L. as component parts. For the assessment years in question, the assessing authority declined to grant the benefit of concessional rates and levied tax at 12 1/2 per cent on the turnover on the ground that "g" forms were not filed along with A2 returns. Dissatisfied by the order of assessment, the respondent carried the matter in appeal before the Deputy Commissioner of Commercial Taxes (Appeals ). The appellate authority dismissed the appeals. Then the respondent filed appeals before the Sales Tax Appellate Tribunal. The Tribunal allowed the appeals and directed that the disputed turnover be taxed at concessional rates. It is the correctness of this order of the Tribunal that is assailed in these T. R. Cs. The learned Government Pleader for Commercial Taxes submits that though "g" forms were filed, they were not accompanied with A2 returns and there is nothing on record to show that the assessee filed the "g" forms along with an application to condone the delay, therefore the "g" forms cannot be taken note of for the purposes of granting concessional rates. The relief of concessional rates was not denied to the assessee either by the assessing authority or the Deputy Commissioner (Appeals) on this ground and this point was not urged before the Tribunal by the petitioner herein. Therefore, we decline to allow the learned Government Pleader to raise this point.

(3.) IT provides that the selling dealer of raw materials, component parts, sub-assembly parts, intermediate parts, consumables and packing materials shall send the declaration in original to the assessing authority along with the return prescribed under rule 15 or rule 17, as the case may be. Here, we are not concerned with rule 15 or rule 17. No doubt, the said clause directs that form "g" declaration should accompany the returns. It is well-settled that the word "shall" does not always mean "must" and its use does not necessarily imply that the provision is mandatory. It also means "may" and can be used to express the intention of the Legislature that the provision is directory. Whether the use of the word "shall" is directory or mandatory has to be understood in the context in which it is used. To understand the intention of the Legislature, it will be useful to peruse clause (ii) of sub-rule (b) of rule 30-A (1) extracted above. This clause provides that if a selling dealer is unable to send the original of the declaration along with the return prescribed, the assessing authority, on application made by the dealer, may allow the dealer such further time as may be considered necessary. It further provides that such time may be granted only up to the time of final assessment. Thus, it is clear that though the "g" forms have to be filed along with the returns, yet if they are not so filed, they can be filed at any time after filing of returns, but before final assessment. It follows that the use of the word "shall" in clause (i) of sub-rule (b) is directory and not mandatory.