1986 (2) TMI 318 - HC - VAT and Sales Tax

Summary

Issues Involved:

1. Opportunity for hearing and validity of notice service.
2. Imposition of penalties under sections 17(3) and 43(1) of the Madhya Pradesh General Sales Tax Act, 1958.
3. Inclusion of transportation charges in the total turnover.

Issue-wise Detailed Analysis:

1. Opportunity for Hearing and Validity of Notice Service:

The petitioner contended that no opportunity was given for a hearing and that the assessment was conducted behind its back. It was also argued that Dayanand was not an authorized agent or manager, making the service of notice on him invalid. However, the court found that the petitioner was given multiple opportunities to appear and respond. Notices were served on various dates, and the petitioner's proprietor and his brother, Dayanand, who acted as the manager, appeared on several occasions but failed to provide explanations or comply with the notices. The court concluded that full opportunity was given, and the petitioner deliberately avoided cooperation. The court also noted that the petitioner made false statements regarding Dayanand's role, as he had admitted to being the manager in previous statements.

2. Imposition of Penalties under Sections 17(3) and 43(1):

The petitioner argued that penalties under both sections 17(3) and 43(1) could not be imposed simultaneously, especially since no returns were filed, negating the possibility of concealment. The court, however, found no legal impediment to imposing penalties under both sections. Section 17(3) penalizes failure to furnish returns, while section 43(1) addresses concealment of turnover. The court referenced previous judgments, including those by the Supreme Court, affirming that both provisions could be applied independently. The court held that in cases of non-filing of returns, the concealment of turnover could still be established, justifying penalties under both sections.

3. Inclusion of Transportation Charges in Total Turnover:

The petitioner contended that transportation charges should not be included in the total turnover as per the definition of "sale price" in section 2(o) of the Act. The court found no foundation for this argument. The seized loose account books did not indicate that the cost of "gitti" was charged separately from transportation. The petitioner failed to produce bill books to support its claim, despite being asked to do so. The court concluded that the transportation charges were rightly included in the sale price as there was no evidence to the contrary.

Conclusion:

The court dismissed the petition, finding that the petitioner was given ample opportunity to be heard but failed to cooperate. The imposition of penalties under both sections 17(3) and 43(1) was deemed lawful, and the inclusion of transportation charges in the total turnover was upheld. The petitioner was also found to have made false statements and acted in a dubious manner, resulting in the imposition of exemplary costs. The petition was dismissed with costs, including exemplary costs of Rs. 1,000 payable to the department.