2020 (3) TMI 366 - HC - VAT and Sales Tax

Review of the assessment of the sales tax - inter-State sales to unregistered dealers - exemption from the State tax under Section 7 (1-a) of the Bihar Finance Act, 1981 - Section 8 of the Central Sales Tax Act - HELD THAT - Since Rule 32 of the Bihar Sales Tax Rules clearly says that before passing the review order under the Act, the reasons are required to be recorded, which is a mandatory provision, the review order needs to be looked into, to see whether it passes the test of Rule 32 of the Rules. It is submitted by the learned counsel for the State that when the assessee admits that he has paid the tax at the maximum rate prescribed under the State Act, sufficient reason has been given by the Assessing Authority to impose the surcharge on the transactions made by the petitioner, particularly when the original assessment order is not challenged - We cannot subscribe to the view of the learned counsel for the State on this count. We find that what has been stated by the Assessing Authority in his review order, is only that in view of the objection raised by the Audit Team, the review order is passed imposing the surcharge. No reason whatsoever has been given by the Assessing Authority, applying his own independent mind, whether in the inter-State transactions made with the unauthorized dealers, the surcharge is also payable by the assessee, and whether in failing to levy such surcharge, there was any mistake apparent on the record. In absence of any such reason given by the Assessing Authority, showing the application of his own independent mind, we are of the considered view that only recording the audit objection cannot mean the independent reasoning given by the Assessing Authority. When the Rule requires the Assessing Authority to record his reasons in writing, that means the Assessing Authority has to make out his own subjective satisfaction about the objection raised by the audit team, and if the Assessing Authority finds that the objection raised by the Audit Team is sustainable, he shall proceed to review order. He cannot proceed to review the order only on the basis of the objection raised by the Assessing Authority, without application of his own independent mind. Rule 32 of the aforesaid Rules is absolutely clear in these terms. Since, no reason has been assigned by the Assessing Authority in the review order dated 01.10.2009, the same cannot be sustained in the eyes of law - Accordingly, both the review orders dated 01.10.2009, with respect to the assessment years 2004-05 and 2005-06, as challenged in both these writ applications are hereby, quashed. Application allowed.

Summary

Issues:
Review of sales tax assessment for assessment years 2004-05 and 2005-06, imposition of surcharge on assessed tax, legality of review order, requirement of recording reasons for review, applicability of surcharge in inter-State transactions with unregistered dealers.

Analysis:
The judgment involves a review of sales tax assessment for the assessment years 2004-05 and 2005-06, focusing on the imposition of surcharge on the assessed tax. The petitioner conducted inter-State sales to unregistered dealers, exempted from State tax under Section 7(1-a) of the Bihar Finance Act but liable to pay tax under Section 8 of the Central Sales Tax Act. The assessment was initially made by the Assessing Authority, and tax was paid by the petitioner. However, a review was conducted following an audit objection, leading to the imposition of surcharge on the assessed tax by the Assessing Authority. The petitioner challenged this order before the Appellate Authority and Commercial Taxes Tribunal, which upheld the surcharge imposition, considering it as a higher percentage of tax. The petitioner then filed writ applications challenging the review order.

The primary contention raised by the petitioner was the lack of a mistake apparent from the record to warrant a review, as surcharge was not leviable under the CST Act for inter-State transactions with unregistered dealers. The petitioner argued that the review order lacked reasons as required by Rule 32 of the Bihar Sales Tax Rules. The petitioner also emphasized that Section 8(2) of the CST Act does not mention surcharge for such transactions, and surcharge is governed by the State Act, not included in the definition of 'tax' under the CST Act.

The court delved into the legality of the review order, emphasizing the mandatory requirement of recording reasons before passing a review order as per Rule 32 of the Rules. The court noted that the review order lacked independent reasoning, merely citing the audit objection without the Assessing Authority's application of mind. The court highlighted the necessity for the Assessing Authority to provide subjective satisfaction about the objection raised before proceeding with a review. As the review order failed to meet this standard, the court quashed the review orders for both assessment years, leading to the setting aside of the Appellate Authority and Tribunal judgments.

Furthermore, the court directed the petitioner's entitlement to a refund of the entire amount with interest or adjustment against future tax liability due to the allowance of the writ applications. The court's decision was based on the clear violation of Rule 32 regarding the recording of reasons for a review order, emphasizing the importance of the Assessing Authority's independent application of mind in such matters.