2023 (4) TMI 1010 - HC - VAT and Sales Tax

Validity of demand - incorrect audit report - Maintainability of writ petition in lieu of statutory appeal against an order rendered in exercise of power under Section 32A of the Maharashtra Value Added Tax Act, 2002 - HELD THAT - The sine qua non for invoking the jurisdiction under Section 32A of the VAT Act is that the assessee shall have agreed with, and accepted, the recommendations made by his Accountant. It is the acceptance by the assessee, which in a sense is an admission of the liability, that clothes the authority with the jurisdiction to proceed under Section 32A of the VAT Act and obviates the need to take recourse to the adjudicatory and adversarial regime statutorily provided. The finding recorded in the order impugned that the assessee has accepted the liability clearly militates against plain and unambiguous disagreement recorded in the audit report. We have not come across any other material warranting any other view. The provision of sub-section(2) of Section 32A of the VAT Act only provides that as regards the liability which is deemed to have been admitted in view of the provisions of sub-section (1) of Section 32A, the interest regime of Section 30 shall come into play mutatis mutandis. There are no other or further significance of sub-section (2). The demand impugned is without jurisdiction - Petition allowed.

Summary

Issues involved:
The challenge to a notice of demand under Section 32A of the Maharashtra Value Added Tax Act, 2002.

Summary:

Jurisdictional Challenge:
The petition challenges a notice of demand issued under Section 32A of the VAT Act, directing the petitioner to pay a specified amount. The provision requires the dealer to pay a recommended sum if accepted, indicating admission of liability. The court considered the absence of a statutory appeal against such orders and the jurisdictional vulnerability of the notice.

Admissibility of Liability:
The court emphasized that for Section 32A to apply, the dealer must agree with the accountant's recommendations, implying an admission of liability. The petitioner disagreed with the accountant's recommendation, as evidenced in the audit report, which contradicted the finding that the liability was accepted. The court found no other material supporting a different conclusion.

Interpretation of Section 32A:
The court examined the provisions of Section 32A, particularly sub-section (2), which deals with the interest regime when liability is admitted. It concluded that the primary significance of this provision is the application of interest provisions and found no further relevance to the case.

Decision and Conclusion:
After thorough consideration, the court held that the demand notice was issued without jurisdiction. The judgment quashed the impugned demand and allowed the petition in favor of the assessee. The court clarified that its decision was limited to the jurisdictional aspect and did not delve into the merits of the case, leaving the department free to pursue other legal avenues for adjudication.