2017 (10) TMI 425 - HC - VAT and Sales Tax

Omission by respondent No. 2 to look into the requests made by the petitioners respectively on 24.08.2012, 21.02.2013, 18.09.2013, 18.03.2014 and one application dated 07.02.2015 - petitioner pray that before proceeding further with the proceedings for assessment in terms of notice dated 06.06.2012, these applications moved by them must be decided - Held that - the stance of the petitioners in their letters to the respondents and this state of affairs, therefore, clearly show that the burden is upon the petitioners to demonstrate that they are not dealers and, therefore, action under Section 23(4) of the 2002 Act cannot be taken against them. They have to demonstrate that sales invoices are not genuine - The material on record, therefore, is sufficient to empower the respondents to proceed against the petitioners. They have given sufficient opportunity to the petitioners and the petitioners have continued to claim that their bankers were not giving details or then burden was upon the respondents to establish that the petitioners were dealers. The grievance made in the present writ petition is misconceived and erroneous - petition dismissed - decided against petitioner.

Issues Involved:
1. Omission by respondent No. 2 to address the petitioners' requests before proceeding with assessment.
2. Validity of the assessment notice dated 06.06.2012 under Section 23 of the Maharashtra Value Added Tax Act, 2002.
3. Determination of whether the petitioners qualify as "dealers" under the 2002 Act.
4. Petitioners' demand for summoning bank officials and cross-examining vendees.
5. The burden of proof regarding the petitioners' status as dealers.
6. Delay in the proceedings and its impact on public revenue.

Detailed Analysis:

1. Omission by respondent No. 2 to address the petitioners' requests before proceeding with assessment:
The petitioners challenged the omission by respondent No. 2 to consider their applications dated 24.08.2012, 21.02.2013, 18.09.2013, 18.03.2014, and 07.02.2015 before moving forward with the assessment proceedings. They argued that these applications, which included requests to summon bank officials and cross-examine vendees, should be decided first. The court noted that despite the petitioners' repeated requests and orders from the court, no decision was taken by the respondents, leading to unnecessary delays.

2. Validity of the assessment notice dated 06.06.2012 under Section 23 of the Maharashtra Value Added Tax Act, 2002:
The notice dated 06.06.2012 was issued under Section 23(4) of the 2002 Act, calling upon the petitioners to show cause why they should not be assessed. The petitioners contended that they could not be assessed as they were not dealers and that the burden of proof was on the department. The court observed that the respondents had the authority to proceed with the assessment based on the material available, and the notice was deemed valid.

3. Determination of whether the petitioners qualify as "dealers" under the 2002 Act:
The petitioners argued that they were not dealers as defined under Section 2(8) of the 2002 Act, claiming that there was no actual movement of goods and that the bank accounts were opened at the instance of mediators to earn a commission. The court noted that the burden was on the petitioners to demonstrate that they were not dealers. The material on record, including the petitioners' own admissions and the Income Tax assessment order, indicated that the petitioners were involved in activities that could be construed as business, thus qualifying them as dealers.

4. Petitioners' demand for summoning bank officials and cross-examining vendees:
The petitioners requested the summoning of bank officials and the cross-examination of vendees to prove their case. The court found that the petitioners had not disclosed the names of the mediators and had failed to provide sufficient details despite multiple opportunities. The court held that the respondents were justified in proceeding with the assessment without granting these requests.

5. The burden of proof regarding the petitioners' status as dealers:
The court emphasized that the burden of proof was on the petitioners to show that they were not dealers. The petitioners' claims that the sales invoices were not genuine and that the bank accounts were used only for commission-based transactions were not substantiated with adequate evidence. The court concluded that the petitioners had not met their burden of proof.

6. Delay in the proceedings and its impact on public revenue:
The court noted that the proceedings had been unnecessarily delayed for over three years due to the respondents' inaction. This delay was prejudicial to public revenue and favored the petitioners. The court directed the respondents to expedite the proceedings and complete them within three months, holding the Assistant Commissioner of Sales Tax responsible for compliance.

Conclusion:
The court dismissed the writ petition, finding the petitioners' grievances to be misconceived and erroneous. The respondents were directed to complete the assessment proceedings within three months, and no order as to costs was made. The court underscored the importance of timely action in matters affecting public revenue.

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