2021 (12) TMI 952 - HC - VAT and Sales Tax

Evasion of tax - Broiler Chicken Birds - undervaluation - suppression of actual sale value of chicken - HELD THAT - In the case on hand, we would like not to confer or deny the power of the Appellate Authority on general principles of law viz., the Appellate Authority has inherent power of remand etc. The appeal being a statutory remedy under the Act, we may endeavour to trace whether such power is available to the Appellate Authority or not under the scheme of subsection (5) of Section 55. In case on hand, the Appellate Authority once is convinced that the penalty order imposed needs to be annulled on the ground of violation of principles of natural justice, then instead of deciding the case on merits the Deputy Commissioner can certainly invoke the power under Clause (c), viz. pass such other orders he may think fit, and complete the adjudication of appeal filed before him. The argument of Revenue denies this functional proprietary conferred by clause (a) of subsection (5) of Section 55. The Deputy Commissioner, on a case-to-case basis, either does the assessment/decides the penalty himself or calls upon the Primary Authority to redo the procedure in accordance with law. In the case on hand, the table, read with the findings of the Deputy Commissioner shown in paragraph 8 supra, justify the remand to the Primary Authority. As matter of fact, there is violation of principles of natural justice and denial of reasonable opportunity to the dealer, thus warranting setting aside the penalty order in Annexure-A, and the Appellate Authority has rightly, within its powers and jurisdiction, remitted the matter to the Primary Authority for consideration and decision afresh. The power of remand is available and no exception to the findings recorded by the Tribunal and the Appellate Authority on the remand is warranted. Revision dismissed.

Issues Involved:
1. Allegation of undervaluation of chicken sales.
2. Power of the Deputy Commissioner (Appeals) to remand a case.
3. Violation of principles of natural justice.

Detailed Analysis:

1. Allegation of Undervaluation of Chicken Sales:
The dealer was accused of systematically undervaluing chicken sales to evade VAT. The Revenue claimed that the dealer's sales were recorded at lower prices than the floor rate set by the Commissioner for advance tax collection. The Intelligence Officer found discrepancies between the dealer's reported sales and the market prices, suggesting deliberate undervaluation.

The dealer countered that the rate fixed by the Commissioner was for advance tax purposes only and not for assessment or penalty. The dealer argued that the actual sale price, not an estimated value, should determine tax liability. The Tribunal agreed with the dealer, noting that the Intelligence Officer failed to prove that the dealer collected more than the recorded amounts. The Tribunal emphasized that retail market prices differ from farm prices, and the Intelligence Officer did not account for this difference.

2. Power of the Deputy Commissioner (Appeals) to Remand a Case:
The Revenue contended that the Deputy Commissioner (Appeals) lacked the jurisdiction to remand the case to the Primary Authority under Section 55 of the KVAT Act. They argued that the Deputy Commissioner should have resolved the case based on the existing record rather than remanding it.

The Tribunal rejected this argument, stating that the power to remand is inherent in the appellate process. The Tribunal cited precedents supporting the view that appellate authorities have the discretion to remand cases for further inquiry. The Tribunal concluded that the Deputy Commissioner (Appeals) acted within their jurisdiction by remanding the case for a fresh assessment, especially given the procedural irregularities identified.

3. Violation of Principles of Natural Justice:
The dealer argued that the penalty order was vitiated due to the denial of the opportunity to cross-examine witnesses and examine evidence. The Intelligence Officer had relied on statements and documents without allowing the dealer to challenge them through cross-examination. The Tribunal found merit in this argument, noting that the Intelligence Officer's failure to allow cross-examination violated principles of natural justice.

The Tribunal emphasized that the denial of cross-examination and the reliance on unverified statements rendered the penalty order procedurally flawed. The Tribunal upheld the Deputy Commissioner (Appeals)'s decision to set aside the penalty order and remand the case for a fresh assessment, ensuring that the dealer would have the opportunity to cross-examine witnesses and present their case fully.

Conclusion:
The Tribunal dismissed the Revenue's revision petition, affirming the Deputy Commissioner (Appeals)'s decision to remand the case for a fresh assessment. The Tribunal emphasized the importance of adhering to principles of natural justice and providing a fair opportunity for the dealer to challenge the evidence against them. The Tribunal also clarified that the power to remand is inherent in the appellate process, supporting the Deputy Commissioner (Appeals)'s jurisdiction to remand the case.

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