2014 (8) TMI 295 - HC - VAT and Sales Tax

Recovery of dues - Valuation - non inclusion of the ADD payable under Section 30 of Special Economic Zone Act, 2005 in the sale value of goods - Revenue asked petitioner to pay entire duty and penalty within 3 days - Held that - Admittedly, the second appeal filed by the petitioner was dismissed by the Tribunal on 24.03.2014 and a copy of the order was served on the petitioner on 30.05.2014. As against the order dated 24.03.2014, the petitioner has got a right of revision and such revision has to be filed within 90 days. However, even before the expiry of the statutory period prescribed for preferring a revision, the respondent has issued the impugned notice calling upon the petitioner to pay the penalty amount, which is sought to be assailed by the petitioner by filing a revision petition. In the decision of this Court rendered in the case of Lakshmi Machine Works Ltd., vs. Deputy Commisisoner reported in (2007 (11) TMI 552 - MADRAS HIGH COURT) it was held that coercive steps shall not be taken for recovery of dues before the expiry of the appeal period and recourse taken by the assessing officer to recover arrears in such a hasty manner, even without giving adequate time to the petitioner to prefer an appeal, is arbitrary - Decided in favour of assessee.

Summary

Issues:
1. Challenge to penalty notice issued by respondent under TNVAT Act, 2006.
2. Revision of assessment order for the assessment year 2010-2011.
3. Dismissal of appeal by Appellate Deputy Commissioner and Tamil Nadu Sales Tax Appellate Tribunal.
4. Issuance of recovery notice by respondent before expiry of revision period.
5. Adherence to principles of natural justice in recovery proceedings.

Analysis:
1. The petitioner challenged a penalty notice issued by the respondent under the TNVAT Act, 2006, demanding payment of a substantial amount within a short period. The petitioner contended that the notice was premature as the right to prefer revision against the assessment order was not exhausted. The Court noted that coercive steps for recovery should not precede the expiry of the appeal period, citing a relevant legal precedent. Consequently, the Court set aside the impugned notice, emphasizing the importance of allowing the petitioner the full appeal period before initiating recovery proceedings.

2. The petitioner's assessment order for the year 2010-2011 was revised by the respondent based on non-inclusion of ADD payable under the Special Economic Zone Act, 2005 in the sale value of goods. Despite objections and subsequent appeals, the Appellate Deputy Commissioner and the Tribunal upheld the revision. The petitioner sought to challenge these decisions through revision before the High Court. The Court acknowledged the petitioner's right to revision within a specified timeframe and criticized the respondent's premature issuance of the penalty notice, ultimately ruling in favor of the petitioner.

3. The appellate authorities, including the Appellate Deputy Commissioner and the Tribunal, dismissed the petitioner's appeals against the revised assessment order. The petitioner diligently pursued legal remedies, including filing appeals and seeking interim orders. However, the premature issuance of the penalty notice jeopardized the petitioner's right to further legal recourse. The Court highlighted the need for procedural fairness and adherence to legal timelines in tax recovery matters, ensuring that taxpayers are not unduly prejudiced by hasty actions of assessing officers.

4. The respondent justified the issuance of the penalty notice as a measure following the dismissal of the petitioner's appeals by the appellate authorities. However, the Court emphasized the importance of allowing the petitioner the full statutory period to exercise the right to revision before initiating coercive recovery measures. By referencing a relevant legal precedent emphasizing the timing of recovery actions in tax matters, the Court held that the premature notice was arbitrary and set it aside, granting relief to the petitioner.

5. In conclusion, the Court found in favor of the petitioner, setting aside the impugned notice and allowing the petitioner the opportunity to pursue revision against the assessment order within the prescribed timeframe. The Court's decision underscored the significance of procedural fairness, adherence to legal timelines, and the avoidance of arbitrary coercive measures in tax recovery proceedings. The judgment serves as a reminder of the importance of upholding principles of natural justice and providing taxpayers with adequate opportunities to challenge assessment decisions before resorting to penalty enforcement actions.