2017 (9) TMI 5 - HC - VAT and Sales Tax

Validity of notice dated 28.10.2009 (Annexure P-5) - Section 26 of the Chhattisgarh Value Added Tax Act, 2005 - petitioners claim that it is not a case where the Petitioners have failed to deposit the return which is one of the most essential ingredient. Further necessary ingredient is that apart from there being a failure in furnishing the return, the assessee should also fail to pay the tax payable, which is not the case so far as the Petitioners are concerned as they have timely deposited their return showing nil return for the assessment years on account of there being an exemption in their favour for the relevant period. Held that - what stands admitted from the reply of the State Government is that the Petitioners had submitted their return showing nil return, which establishes the fact that the returns had been submitted. Thus, the requirement under Section 26 of the Act of 2005 regarding failure to furnish any return is not available against the present Petitioners. The exemption was withdrawn only on 26.10.2009 and the notices for demand of advance tax were issued on the very second day i.e. on 28.10.2009. From this itself it clearly reflects that the return of the Petitioners must have been filed much before the date of exemption being withdrawn by the respondent authorities. If that be so, it appears to be a case where the necessary ingredient required for initiating a proceeding under Section 26 of the Act of 2005 was not available for the department at the time of issuance of Annexure P-5. This Court has no hesitation in reaching to the conclusion that the notice (Annexure P-5) issued by the State Government was uncalled for at this stage, for the reason that when the State Government itself has admitted in their reply of the returns having been submitted by the Petitioners, the provisions of Section 26 of the Act of 2005 could not have been invoked by the State - impugned Annexure P-5 deserves to be and is accordingly set aside - petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to notice for advance tax under Chhattisgarh Value Added Tax Act, 2005 for different assessment years.

Analysis:
The petitioners contested the notice for advance tax, arguing it was against the law as they had timely filed their returns showing nil return due to an exemption. The State government admitted the submission of returns by the petitioners, indicating no failure to furnish returns. The withdrawal of exemption was challenged, and the State's contention of non-compliance was refuted. The petitioners relied on judgments from the Madhya Pradesh High Court to support their case.

The State opposed the writ petitions, claiming the exemption was withdrawn, and there was a default in filing returns and paying taxes. They argued that the notices issued were in accordance with the law. The State highlighted the alleged non-compliance by the petitioners regarding advance tax.

Upon examining the contentions, the court found that the petitioners had indeed submitted their returns showing nil return, and the exemption was withdrawn after the returns were filed. The court noted that the necessary conditions for initiating proceedings under the Act were not met at the time of issuing the notice. The court also rejected the State's claim of deliberate non-compliance by the petitioners.

Referring to previous judgments, the court emphasized the need for assessment before demanding advance tax and quashed the notice issued by the State. The court directed the State to proceed with appropriate assessment proceedings in accordance with the law. The writ petitions were allowed, and the impugned notices were set aside, leaving the State with the option to initiate proper assessment proceedings if desired.