Pls. get his version as whether department is asking for form F because of above factual position. If yes, you can issue him a Form F. I am extracting below judgment of Supreme Court which has discussed the issue in details
M/s Ambika Steels Ltd.
V/s State of U.P. and others in Civil Appeal N0. 4970 of 2008,
decided on 31st March 2009, (Reported in 2009 NTN (Vol. 39) 263)
heard the bunch of petitions arising out of the Judgement of the Hon’ble
Allahabad High Court being the same petitioner , i.e. M/s Ambika Steels
Ltd. reported as Ambica Steels Ltd Vs. State of U.P. 2007 NTN ( Vol
35)-1.
Ambica Steels Challenged the circular dated 28-11-05 of
Commissioner of Trade Tax U.P. stating that Form ‘F” is required to
filed in respect of all transfer of goods which are otherwise than by way
of sale and also applies to all goods sent or reciept for job work goods
returned .
Section 6-A
“6-A. Burden of Proof, etc., in case of transfer of goods claimed
other than by way of sale.
(1) Where any dealer claims that he is not liable to pay tax under
this Act, in respect of any goods, on the ground that the movement
of such goods from one state to another was occasioned by reason
of transfer of such goods by him to any other place of his business
or to his agent or principal, in the case may be, and not by reason
of sale, the burden of proving that the movement of those goods
was so occasioned shall be on that dealer and for this purpose
he may furnish to the Assessing Authority, within the
prescribed time or within such further time as that authority
may, for sufficient cause, permit, a declaration, duly filled and
signed by the principal officer of the other place of business, or
his agent or principal, as the case may be, containing the
prescribed particulars in the prescribed form obtained from the
prescribed Authority, alongwith the evidence of dispatch of such
goods.
and if the dealer fails to furnish such declartion ,then, the
movement of such goods shall be deemed for all purposes of this
Act to have been occasioned as a result of sale.
(2) If the Assessing Authority is satisfied after making such inquiry
as he may deem necessary that particulars contained in the
declaration furnished by a dealer under Sub-Section(1) are true,
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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 the
declaration relates shall be deemed for the purposes of this Act
to have been occasioned otherwise than as a result of sale.
EXPLANATION :- In this section, “Assessing Authority”, in relation
to dealer, means the authority for the time being competent to
assess the tax payable by the dealer under this Act”.
* Bold portion brought by amendment.
Hon’ble Allahabad High Court in Ambica Steels Ltd Vs. State of
U.P. 2007 NTN ( Vol 35)-1 held as below :-
The submission that the goods sent for job work or received for doing
job work , do not amount to sale would depend upon the contract
entered into between the parties and would be the subject matter
of examination by the Assessing Authority . Even otherwise , under
section 2(g)(ii) of the Central Act, transfer of goods used in execution
of work contract is treated to be a sale. If the petitioner claims that
it is not liable to tax on the transfer of goods from U.P. to ex U.P. ,
then it would have to discharge the burden placed upon it under
Section 6A by filing declaration Form F. It would be immaterial
whether the person to whom the goods are sent for or received
after job work is a bailee. As held b the Apex Court, under the
statutory provison the requirement is that if any person claims
that he is not liable to pay tax on transfer of the goods from one
State to another, he has to furnish declaration Form F. This would
be applicable in a case of goods returned also.
And for this refered and relied on the judgment of the Hon’ble
Supreme Court
In Ashok Leyland Ltd. vs. State of Tamil Nadu (2004) 134
STC (S.C.).
Para 44-
Section 6-A provides for exception as regard the burden of proof in
the event a claim is made the transfer of goods had taken place
otherwise than by way of sale . Indisputably , the burden would be
on the dealer to show that the movement of goods had occasioned
not by reason of any transaction involving sale of goods but by
reason of transfer of such goods to any other place of his bussiness
or to his agent or principal , as the case may be. For the purpose of
discharge of such burden of proof , the dealer is required to furnish
to the assessing authority within the prescribed time a declaration
duly filed and signed by the principal officer of the other place of
bussiness or agent or his principal. Such declaration would contain
the prescribed the particular in the prescribed form obtain from the
prescribed authority ..... In the event if it face to furnish such
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declaration, , by reason of legal fiction , such movement of goods
would be deemed for all purposes of such Act to have occassioned
as a result of sale.
Against the above judgment the matter was challenged before
the Hon’ble Supreme Court in Civil Appeal No- 4970 of 2008 and was
decided on dt. 31-03-09 . The case was disposed of affirming the findings
of the Hon’ble Allahabad High Court , as above :-
In this judgment the scope and applicabilty of section 6-A of the
Central Sales Tax Act, 1956 , was perhaps not argued . The Apex
Court took note and observed “ There exists difference of opinion
between the various Sales Tax Collectors in the country and ,
therefore, since the appellant in now ready to file Form “F” we are
directing the Assessing officer not to impose penalty /interest, in
the re-assessment proceedings as one time waiver. Needless to add
that waiver of penalty and interest shall be admissible only on
Form “F” being furnished by the assessee within the prescribed
period” and in the last para concluded stating that “ we are informed
that certain State(s) within whose jurisdiction the transferee is
located is /are not issuing F Forms. In such an eventuality it would
be open to the assessing officer to complete re-assessment
proceedings on its own merits after examining the transaction
between the parties, keeping in mind the circumstances that the
assessee is not in a position to obtain the F- Form, for no fault of
his.
On going through the last para of the judgment of the Apex
Court quoted hereinabove , it may be noted that the Supreme Court
has left the matter at the discretion of the assessing authorities who
has no other means but to follow the dictum of the Ambika Steels
Ltd.(supra) laid down by the Allahabad High Court.
Therefore, Form ‘F’ is required if goods are sent for job work and
are returned after the job including those case were in the transaction
of the sale goods are returned though within the prescribed period.
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66 News & Views 2009 NTN
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