9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (11) TMI 1025 - HC - VAT and Sales TaxJurisdiction - Whether un-constituted Tribunal i.e., Pondicherry Sales Tax Appellate can admit the Tax Appeal in respect of Puducherry Value Added Tax Act, 2007. The said Act came into force on the 1st of July 2007. Whether is it sustainable in Law? - Whether non-issuing of notification has been issued by the Government for constitution of Pondicherry Value Added Tax Appellate Tribunal and non - appointing of a Judicial Officer to exercise the function conformed under the new Act is sustainable in Law? - Held that - in exercise of the powers in Section 33 of the erstwhile Pondicherry General Sales Tax Act, appointment has been made and since then, the Appellate Tribunal is functioning - as rightly contended by the learned Government Advocate (Pondicherry), when notification had already been issued, under the erstwhile Pondicherry General Sales Tax Act, 1967, then the saving clause, is attracted - decided against petitioner. Whether the Assessing Officer has got power to file the Tax Appeal before the Tribunal under Section 49(1) of the Pondicherry Value Added Tax, 2007and is it sustainable in Law? - Held that - Object of the then Pondicherry General Sales Tax Act, 1967, is to levy general tax on sale or purchase of goods in the Union territory of Pondicherry and to validate the levy and collection of such tax under certain Act of Pondicherry. Pondicherry Value Added Tax Act, 2007 is enacted to provide for the levy and collection of value added tax on the sale or purchase of goods in the Union territory of Puducherry and for matters connected therewith or incidental thereto - Under Article 265 of the Constitution of India, Government is empowered to levy tax. Tax is paid to the Government and it is the duties and functions of the authorities in the Commercial Taxes Department, to implement the taxing laws. Ultimately, it is the revenue, which is collected by the Government, by way of tax. As regards intra-state sale, there are provisions, both in the PVAT Act, 2007 or TNVAT, 2006, as the case may be. Finality of orders, against the Government, at the first appellate stage, at the instance of an assessee, ie., before the Appellate Assistant Commissioner (CT), Commercial Taxes Department, Puducherry, 2nd respondent herein and the same cannot be questioned by the Government and that no officer, would not be in a position to challenge the correctness of the the Appellate Assistant Commissioner (CT), Commercial Taxes Department, Puducherry, 2nd respondent herein, even if there is an incorrect approach, either on facts or law. In a lis, involving tax, it is the Government and assessee, who are the parties and the assessing officer, is only an officer, implementing the taxing laws, on behalf of the Government - If the Appellate Assistant Commissioner (CT), Commercial Taxes Department, Puducherry, 2nd respondent herein, has committed an error, on facts or law or both, as the case may be, certainly the Government or any authorised officer, to levy tax, on behalf of the Government, can always maintain an appeal to the Appellate Tribunal, testing the correctness of the order - Literal construction of the words, any person , confining only to an assessee and not to any officer to file an appeal, against the order of the appellate authority, to the Tribunal, would result in absurdity and the same would not serve the purpose and object of the Act. Hypothetical construction of the words, any person , to mean only the assessee, would be inconsistent with the object and policy of the Act. It would defeat or impair the policy of the Act. Object, aim and scope of the Act, should be kept in mind and meaning should be collected from the expressed intention of the legislature - the issue decided against petitioner. Whether the Assessing Officer has got power to levy higher rate of tax by overlooking the Government order and whether is it sustainable in Law? - Held that - perusal of the material on record shows that the Appellate Tribunal has analysed the evidence and recorded a categorical finding of misclassification of Liquefied Petroleum Gas (LPG) and filing of returns, to gain benefit of lesser tax. The Tribunal has properly applied the Government Orders, applicable to the period in question. There is no perversity. Hence, the Substantial Question of Law No.4, is answered in the negative, against the assessee. Considering the material on record, we are of the view that the petitioner has not made out a case for interference, with the order of the Appellate Tribunal, Puducherry, dated 28.06.2017 passed in Tax Appeal No.15 of 2015. Revision dismissed - decided against revisionist.
Issues Involved:
1. Constitutionality of the Pondicherry Sales Tax Appellate Tribunal under the PVAT Act, 2007. 2. Authority of the Assessing Officer to file a Tax Appeal before the Tribunal under Section 49(1) of the PVAT Act, 2007. 3. Validity of non-issuance of notification for the constitution of the Pondicherry Value Added Tax Appellate Tribunal and non-appointment of a Judicial Officer. 4. Authority of the Assessing Officer to levy a higher rate of tax contrary to the Government order. Issue-wise Detailed Analysis: 1. Constitutionality of the Pondicherry Sales Tax Appellate Tribunal under the PVAT Act, 2007: The petitioner argued that the Pondicherry Sales Tax Appellate Tribunal was not properly constituted under the PVAT Act, 2007. The court examined Section 44 of the PVAT Act, which mandates the appointment of a Judicial Officer qualified to be a District and Sessions Judge as the Appellate Tribunal. The Government Advocate countered that a notification had been issued entrusting the duties of the Appellate Tribunal to the Principal District and Sessions Judge, Puducherry. The court found that the notification from 1968, under the erstwhile Pondicherry General Sales Tax Act, 1967, was still valid under the saving clause of Section 81 of the PVAT Act, 2007. Thus, the Tribunal was deemed to be properly constituted. 2. Authority of the Assessing Officer to file a Tax Appeal before the Tribunal under Section 49(1) of the PVAT Act, 2007: The petitioner contended that Section 49 of the PVAT Act, 2007, only allowed an assessee, not an officer, to file an appeal. The court compared Section 49 of the PVAT Act with Section 58 of the Tamil Nadu Value Added Tax Act, 2006, which explicitly allows officers to file appeals. The court interpreted the term "any person" in Section 49 of the PVAT Act to include both assessees and officers, based on the legislative intent and the object of the Act. This interpretation was supported by various judicial precedents emphasizing that the words of a statute should be interpreted to achieve the legislative intent and avoid absurd results. Thus, the court held that the Deputy Commercial Tax Officer was authorized to file an appeal. 3. Validity of non-issuance of notification for the constitution of the Pondicherry Value Added Tax Appellate Tribunal and non-appointment of a Judicial Officer: The petitioner argued that no fresh notification had been issued under the PVAT Act, 2007, appointing a Presiding Officer to the Tribunal. The court referred to Section 81 of the PVAT Act, which contains a saving clause that validates actions taken under the repealed Act, including the appointment of the Appellate Tribunal. The court concluded that the existing notification from 1968, which appointed the Principal District and Sessions Judge as the Appellate Tribunal, was still valid. Therefore, no fresh notification was required under the new Act. 4. Authority of the Assessing Officer to levy a higher rate of tax contrary to the Government order: The petitioner claimed that the Assessing Officer had levied a higher rate of tax on LPG for commercial use, contrary to the Government order that reduced the tax rate for LPG for domestic use to 1%. The court examined the Tribunal's findings, which indicated that the petitioner had misclassified LPG for commercial use as LPG for domestic use to benefit from the lower tax rate. The Tribunal had found sufficient evidence of this misclassification and upheld the higher tax rate for commercial LPG. The court found no perversity in the Tribunal's findings and upheld the imposition of the higher tax rate. Conclusion: The court dismissed the Tax Case Revision, holding that the Pondicherry Sales Tax Appellate Tribunal was constitutionally constituted, the Deputy Commercial Tax Officer had the authority to file an appeal, no fresh notification was required for the Tribunal's constitution, and the higher tax rate for commercial LPG was correctly imposed. The petitioner was granted two months to pay the outstanding tax.
|
