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TMI Blog2011 (4) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(28)(c) includes transfer of property in goods (whether as goods or in some other form) involved in execution of a works contract. Section 55A of the Act provides for composition of tax in respect of execution of works contract. Under the said section, application is to be made for permission to pay tax as per appendix 2A of the Act by way of lump sum on the total value of the works contract. The application for permission at the relevant time was required to be made in form 35A and rule 33A of the Rules. Under appendix 2A, sales tax was payable under the composition scheme at the rate of two per cent on the total value of works contract. The petitioner, therefore, made application under rule 33A and form 35A for permission to pay sales tax at the rate of two per cent in terms of the provisions of section 55A. The applications were not disposed of by the Sales Tax Department till March 31, 1998 and the petitioner was paying sales tax at the rate of two per cent on the running bills from time to time expecting the grant of such permission in due course before assessment. Sometime in 1995, search and seizure proceedings were undertaken by the Department against the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the papers and was also informed that the other three applications were not found in the case papers nor were they found to be entered in the inward register. The petitioner, therefore, once again furnished Xerox copies of the said applications at the time of assessment. Thereafter, the Sales Tax Officer passed an order of composition under section 55A of the Act on March 31, 1998 which incidentally was also the last date for passing an assessment order. The Sales Tax Officer also finalised the assessment order but before passing the same as per the Department's policy and rules, forwarded the papers to the Assistant Commissioner (Enforcement), Baroda for scrutiny and confirmation. After the papers were returned from the office of the Assistant Commissioner, the assessment order was passed by the concerned Sales Tax Officer. Subsequently, by a notice dated March 14, 2001 issued in form 45, the petitioner was informed that the petitioner was liable to pay sales tax and additional tax of 20 per cent and interest under section 47(4) (a) of the Act and penalty under section 45(6) as the petitioner was not granted permission for composition under section 55A in the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approving the order to exercise powers of revision. On merits, it was submitted that the main ground for revising the order of composition is that the applications made by the petitioner were not found on record. It was submitted that by the notice dated February 15, 1995 issued under section 59 of the Act, the petitioner was called upon to submit details with regard to the applications filed by the petitioner under rule 33A(1) of the Rules in form 35A as well as regards any composition order having been made under section 55A of the Act. It was submitted that pursuant to the said notice, the petitioner had filed a communication dated March 2, 1995 submitting details of the four applications submitted by the petitioner and had also furnished additional set of the applications in form 35A on the record of the concerned officer. It was submitted that at the relevant time, there was no response to the said communication though subsequently, the assessing officer had made assessment. During the course of assessment proceedings, the petitioner was again informed that the applications submitted by the petitioner were not found on record and, therefore, the petitioner had again su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alia, stipulated that if an application is made beyond the prescribed time-limit, tax and interest of the particular period were required to be paid. It was submitted that in the present case, the petitioner has not proved even the making of the initial application nor does the petitioner seem to have made the application later on and that even otherwise for the period in question, the petitioner has not paid the interest. Hence, it cannot be said that the so-called applications made by the petitioner were validly made. Next, it was submitted that pursuant to the application in form 35A, the petitioner had not filed returns under form 35C. Hence, the necessary returns which should have been filed have also not been filed by the petitioner. According to the learned Assistant Government Pleader, the provisions of sections 13, 51 and 55 would not apply to a dealer who opts for composition of tax under section 55A of the Act and, therefore, the petitioner has not made any valid application as contemplated under law. It was submitted that insofar as the contention that the respondents had power to condone delay in filing applications is concerned, the same is misconceived ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number and date of the application and the date of posting thereof. The petitioner also stated that no permission had been granted by the Sales Tax Officer for any of the contracts. However, they were paying composition amount at the rate of two per cent for the works contract executed and filing returns accordingly. The petitioner also enclosed therewith additional set of Xerox copies of the applications made by it in form 35A. The petitioner also requested that permission be granted at the earliest. Despite the aforesaid position, there was no response to the said communication as to whether the applications filed by the petitioner were, in fact, received by the respondents or not nor informing the petitioner that such applications were not on record. Thereafter, by a show-cause notice dated March 26, 1996, the petitioner was called upon to show cause as to why penalty should not be levied on it as the petitioner had not paid sales tax at the rate of 14.40 per cent and had paid the same at the rate of two per cent as per the Composition Scheme. The petitioner submitted its reply dated April 2, 1996 after which, according to the petitioner, the notice had been dropped. It is averr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper within 12 months from the date of service of notice of revision. In the facts of the present case, the impugned notice has clearly been issued after the expiry of the period of three years from the date of the order sought to be revised, that is, the period of limitation prescribed under clause (a) of sub-section (1) of section 67 and as such, the same is apparently barred by limitation. Another aspect of the matter is that as noticed hereinabove, based on the composition order, the assessing officer framed an assessment which was submitted to the Assistant Commissioner for approval. The Assistant Commissioner approved of the assessment framed subject to certain modifications ; however, there was no objection to the same being in terms of the composition order. Thus, it can be assumed that indirectly, the Assistant Commissioner had approved of the composition order. In the circumstances, it appears that the learned advocate for the petitioner is justified in contending that once an order has been passed with the approval of the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned officer at the relevant time had passed the order under section 55A of the Act. Be that as it may, as noticed earlier, the respondents have never brought it to the notice of the petitioner that the original applications were not on record and had never informed the petitioner that since the original applications were not found on record, the applications under section 55A of the Act would be treated as not filed. Instead, the Sales Tax Officer at the relevant time has chosen to pass a composition order on the basis of the applications filed by the petitioner. If it was the case of the respondents that the original applications filed by the petitioner were not found on the record and therefore, no order under section 55A of the Act could be passed, it was incumbent upon the concerned authorities to inform the petitioner as regards the same at the relevant point of time. Had the petitioner been informed about the non-consideration of the applications under section 55A of the Act, the petitioner could have filed fresh applications along with applications for condonation of delay. However, the respondents having failed to point out the aforesaid facts to the petitioner cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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