2017 (10) TMI 1020 - HC - VAT and Sales Tax

Constitutional validity of Section 9 (2) (g) of the Delhi Value Added Tax, 2004 - Articles 14 and 19 (1) (g) of the Constitution of India - failure to deposit VAT collected from its buyers, which included SCT - it was alleged that ITC availed by SCT on the purchases did not match with the sale details filed by the vendor. Held that - there is a singular failure by the legislature to make a distinction between purchasing dealers who have bona fide transacted with the selling dealer by taking all precautions as required by the DVAT Act and those that have not. Therefore, there was need to restrict the denial of ITC only to the selling dealers who had failed to deposit the tax collected by them and not punish bona fide purchasing dealers. The latter cannot be expected to do the impossible. It is trite that a law that is not capable of honest compliance will fail in achieving its objective. If it seeks to visit disobedience with disproportionate consequences to a bona fide purchasing dealer, it will become vulnerable to invalidation on the touchstone of Article 14 of the Constitution. The purchasing dealer is being asked to do the impossible, i.e. to anticipate the selling dealer who will not deposit with the Government the tax collected by him from those purchasing dealer and therefore avoid transacting with such selling dealers. Alternatively, what Section 9 (2) (g) of the DVAT Act requires the purchasing dealer to do is that after transacting with the selling dealer, somehow ensure that the selling dealer does in fact deposit the tax collected from the purchasing dealer and if the selling dealer fails to do so, undergo the risk of being denied the ITC. Indeed Section 9 (2) (g) of the DVAT Act places an onerous burden on a bonafide purchasing dealer - All this points to a failure to make a correct classification on a rational basis so that the denial of ITC is not visited upon a bonafide purchasing dealer. This failure to make a reasonable classification, does attract invalidation under Article 14 of the Constitution, as pointed out rightly by learned counsel for the Petitioners. It can straightway be seen that Section 48 (5) of the MVAT Act is not an exact replica of Section 9 (2) (g) of the DVAT Act. For instance, Section 48 (5) of the MVAT Act requires the selling dealer to have actually paid the tax collected by him with the Government for the purposes of the purchasing dealer availing ITC, whereas Section 9 (2) (g) of the DVAT Act requires the selling dealer to either deposit the tax collected or lawfully adjust it against his output tax apart from correctly reflecting the sale in his returns. In the present case, the conditions imposed for the grant of ITC are spelt out in Sections 9 (1) and (2) of the DVAT Act and have been adverted to earlier. The claim of the purchasing dealer in the present case is not that it should be granted that ITC de hors the conditions. Their positive case is that each of them, as a purchasing dealer, has complied the conditions as stipulated in Section 9 and therefore, cannot be denied ITC because only selling dealer had failed to fulfil the conditions thereunder. More importantly, the Court finds that there is no provision in the MVAT Act similar to Section 40A of the DVAT Act. Section 40A of the DVAT Act takes care of a situation where the selling dealer and the purchasing dealer act in collusion with a view to defrauding the Revenue. Whether Section 9 (2) (g) of the DVAT Act, requires to be struck down as violative of Article 14 or can be saved from invalidity by any known interpretational device? - Held that - the expression dealer or class of dealers occurring in Section 9 (2) (g) of the DVAT Act should be interpreted as not including a purchasing dealer who has bona fide entered into purchase transactions with validly registered selling dealers who have issued tax invoices in accordance with Section 50 of the Act where there is no mismatch of the transactions in Annexures 2A and 2B. Unless the expression dealer or class of dealers in Section 9 (2) (g) is read down in the above manner, the entire provision would have to be held to be violative of Article 14 of the Constitution - the default assessment orders of tax, interest and penalty issued under Sections 32 and 33 of the DVAT Act, and the orders of the OHA and Appellate Tribunal insofar as they create and affirm demands created against the Petitioner purchasing dealers by invoking Section 9 (2) (g) of the DVAT Act for the default of the selling dealer, and which have been challenged in each of the petitions, are hereby set aside. Petition allowed.

Issues Involved:
1. Constitutional validity of Section 9(2)(g) of the Delhi Value Added Tax, 2004 (DVAT Act) as being violative of Articles 14 and 19(1)(g) of the Constitution of India.
2. The impact of Section 9(2)(g) on bona fide purchasing dealers.
3. The Department's ability to recover tax from defaulting selling dealers.
4. The differentiation between bona fide and non-bona fide purchasing dealers.
5. The applicability of penalties under Section 86(10) of the DVAT Act.
6. The interpretation and reading down of Section 9(2)(g) to save its constitutionality.

Detailed Analysis:

1. Constitutional Validity of Section 9(2)(g) of the DVAT Act:
The petitioners challenged the constitutional validity of Section 9(2)(g) of the DVAT Act, arguing that it treats both "guilty purchasers" and "innocent purchasers" alike, violating Article 14 of the Constitution. The court noted that Section 9(2)(g) fails to distinguish between bona fide purchasing dealers and those who are not, leading to arbitrary treatment. This lack of rational classification between different classes of purchasing dealers renders the provision unconstitutional under Article 14.

2. Impact on Bona Fide Purchasing Dealers:
The court observed that bona fide purchasing dealers, who comply with all requirements under the DVAT Act, including ensuring that the selling dealer is registered and has issued a valid tax invoice, should not be penalized for the default of the selling dealer. The purchasing dealer cannot control whether the selling dealer deposits the tax collected with the government. Therefore, denying ITC to such bona fide purchasing dealers is arbitrary and unjust.

3. Department's Ability to Recover Tax:
The court highlighted that the DVAT Act provides mechanisms for the Department to recover tax from defaulting selling dealers, such as through recovery certificates and attachment of property. The Department is not helpless and has sufficient statutory avenues to ensure compliance by the selling dealers without penalizing bona fide purchasing dealers.

4. Differentiation Between Bona Fide and Non-Bona Fide Purchasing Dealers:
The court emphasized the need for the law to distinguish between honest and dishonest dealers. It cited the Punjab and Haryana High Court's decision in Gheru Lal Bal Chand v. State of Haryana, which held that liability should not be imposed on a purchasing dealer who has acted in good faith and complied with all legal requirements. The failure to make such a distinction in Section 9(2)(g) of the DVAT Act results in unconstitutional discrimination.

5. Applicability of Penalties Under Section 86(10) of the DVAT Act:
The court noted that penalties under Section 86(10) should not be imposed unless it is shown that the return filed by the purchasing dealer is misleading or deceptive. The purchasing dealer should not be penalized for the non-deposit of tax by the selling dealer, which is beyond their control. The court relied on precedents to argue that penalties must be preceded by proper notice and an opportunity to be heard.

6. Interpretation and Reading Down of Section 9(2)(g):
To save Section 9(2)(g) from being struck down as unconstitutional, the court read down the provision. It held that the expression "dealer or class of dealers" should be interpreted as not including a bona fide purchasing dealer who has complied with all legal requirements. The Department should proceed against the defaulting selling dealer to recover the tax and not deny ITC to the bona fide purchasing dealer.

Conclusion:
The court concluded that Section 9(2)(g) of the DVAT Act, as it stands, is violative of Article 14 of the Constitution due to its failure to distinguish between bona fide and non-bona fide purchasing dealers. The court read down the provision to exclude bona fide purchasing dealers from its scope, thereby protecting their right to claim ITC. The default assessment orders of tax, interest, and penalty against the petitioners were set aside, and the Department was directed to proceed against defaulting selling dealers instead. The writ petitions were disposed of with no orders as to costs.

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