2015 (3) TMI 301 - HC - VAT and Sales Tax

Tribunal set aside the mandatory penalty on the ground of unnecessary harassment - non-filing of returns where the appellant is not liable to pay tax under DVAT - Whether the DVAT Tribunal acted correctly in holding that in the absence of rules under Section 59(2) of the DVAT Act, 2004 (hereafter referred to as the Act ), penalty action under Section 86(14) for non-compliance with Sections 59(1), (2) and (3) could not have been initiated and taken - Held that - Substantive powers to require production of records imply a substantive obligation to maintain books and other documents - the corresponding right of the Commissioner is located in Section 59(1); Section 59(2) is not compulsive but only enabling. This is evident from the use of the expression, the Commissioner may . In other words, the proceedings for violation of Section 59(1) are not dependent on the existence otherwise of rules which may or may not be framed in the given fact situation. The Court s view is supported by the decisions - Gannon Dunkerley and Co. and Ors. v. State of Rajasthan and Ors. 1992 (11) TMI 254 - SUPREME COURT OF INDIA ; Sudhir Chandra Nawn v. Wealth Tax Officer, Calcutta and Ors. 1968 (4) TMI 1 - SUPREME Court and Mahim Patram Pvt. Ltd. v. UOI 2007 (2) TMI 73 - SUPREME COURT OF INDIA . - interference with the ultimate order setting aside the penalty of ₹ 50,000/- is not warranted. - Appeal disposed of.

Summary

Issues:
1. Interpretation of penalty provisions under DVAT Act for non-compliance with Sections 59(1), (2), and (3).
2. Whether penalty action under Section 86(14) could be initiated in the absence of rules under Section 59(2) of the DVAT Act.

Issue 1 - Interpretation of Penalty Provisions:
The High Court considered the question of law regarding the correctness of the DVAT Tribunal's decision on penalty action under Section 86(14) for non-compliance with Sections 59(1), (2), and (3) of the DVAT Act. The Tribunal set aside the penalty order of &8377; 50,000 imposed by the Objection Hearing Authority and the Value Added Tax Officer due to insufficient opportunity provided. The Tribunal emphasized that penalty action was not justified as rules under Section 59(2) had not been framed. The Court analyzed the provisions of Section 59, emphasizing that while Section 59(1) imposes a substantive obligation to maintain records, Section 59(2) is enabling, not compulsory. The Court cited relevant case laws to support this interpretation, concluding that the Tribunal's observations were incorrect. However, considering the overall facts, the Court decided not to interfere with the penalty order's setting aside.

Issue 2 - Initiation of Penalty Action without Rules under Section 59(2):
The Court delved into the absence of rules under Section 59(2) and its impact on initiating penalty action under Section 86(14) of the DVAT Act. The Tribunal's stance was that penalty action could not be taken without the existence of rules under Section 59(2. However, the Court highlighted that the Commissioner's right to require production of records under Section 59(1) was not dependent on the framing of rules under Section 59(2). The Court referred to precedents to support this view. Despite disagreeing with the Tribunal's interpretation, the Court refrained from interfering with the decision to set aside the penalty order due to other considerations in the case.

In conclusion, the High Court's judgment clarified the interpretation of penalty provisions under the DVAT Act concerning non-compliance with record-keeping requirements. The Court emphasized the enabling nature of Section 59(2) and the Commissioner's substantive powers under Section 59(1) irrespective of the existence of rules. While disagreeing with the Tribunal's reasoning, the Court decided not to overturn the decision to set aside the penalty order based on the case's specific circumstances.