2016 (8) TMI 2 - HC - VAT and Sales Tax

Validity of seeking Furnishing of security for an amount of ₹ 70 lakhs as a condition for registration - Section 17(2) of the KVAT Act - Held that - there cannot be any dispute regarding the power of the officer in calling upon a dealer to furnish security not exceeding of the tax payable on the turnover of the dealer for the year as estimated by the Registering Authority. In cases where a new dealer seeks for registration, the Registering Authority is under obligation to estimate regarding the turnover of the dealer which apparently has to be based on certain factual material to be produced by the dealer. In fact it seems from Ext.P3 that, in the absence of any such material, the officer had proceeded to make the estimate on the basis of the turnover of M/s.Khushi International, the other firm. Primarily I do not find any error in the view taken by the Registering Authority, though it might be contended that the amount claimed is exorbitant. However, since the petitioner had relied upon Ext.P7 the return filed by M/s.Khushi International, the tax liability can be easily found out from the said document itself and the Registering Authority has to consider the same before taking a final decision in the matter. I am of the view that Ext.P7 may have relevance while conducting an enquiry in terms of Section 17 (2) of the Act. For that purpose, it will be appropriate for the Registering Authority to consider Ext.P7 as well before arriving at a finding regarding calling upon the petitioner to remit ₹ 70 lakhs. Matter restored before the authority to decide the issue afresh.

Summary

Issues: Challenge to demand for security deposit for registration based on estimated turnover; Interpretation of Section 17(2) of the KVAT Act; Validity of Circular No.10/2006 exemption; Consideration of factual material for estimating turnover.

Analysis:

1. Challenge to Security Deposit Demand: The petitioner contested the demand for a security deposit of ?70 lakhs for registration, arguing that the amount was excessive and not in accordance with the Statute. The petitioner highlighted that the turnover of a previous firm was used to estimate the turnover of the new firm, which was deemed unjustified. Additionally, the petitioner mentioned that the tax liability had been calculated for the previous firm, and the assumption that the new firm's turnover would be the same was baseless.

2. Interpretation of Section 17(2) of the KVAT Act: The respondent supported the demand for security deposit by invoking Section 17(2) of the KVAT Act. It was noted that a partner of the new firm was previously associated with a different firm with a substantial turnover and tax liability. The respondent argued that the turnover estimation for the new firm was justified based on the turnover of the previous firm, as the partners indicated they would wind up the old firm and start the new one with a similar turnover.

3. Validity of Circular No.10/2006 Exemption: The judgment discussed Circular No.10/2006, highlighting that certain commodities were exempt from the circular's applicability, including veneer and plywood. Despite the petitioner's reliance on the circular, the court emphasized that the officer had the authority to demand a security deposit exceeding the limits specified in the circular, especially considering the provisions of Section 17(2) of the Act.

4. Consideration of Factual Material for Turnover Estimation: The court clarified that the Registering Authority had the right to estimate the turnover of a new dealer seeking registration based on factual material provided by the dealer. In this case, the estimation was made using the turnover of the previous firm due to the absence of other material. The court directed the Registering Authority to consider a return filed by the previous firm (Ext.P7) to determine the tax liability before making a final decision on the security deposit amount.

5. Final Judgment: The judgment set aside the initial demand for a security deposit and instructed the Registering Authority to consider Ext.P7 and all relevant circumstances before making a decision. The petitioner was granted the opportunity to submit additional materials for a proper turnover estimate under Section 17(2). The court mandated that the Registering Authority must issue a decision within one month from the date of the judgment.