9911796707
TMI Blog2001 (11) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuing an eligibility certificate for a period of 5 years valid from January 17, 1998 to January 16, 2003. The returns were also filed by the petitioner No. 1 on and from 4 quarters ending on September 30, 1999 in accordance with law. Since the provisions of section 39 was amended by inserting subsection (3) of section 39 and 39A, an application was filed before this Tribunal challenging the constitutional validity of those amended provisions and the matter is pending for hearing. By way of such amendment the benefit of enjoyment of tax holiday has been withdrawn, inasmuch as the petitioner No. 1 is using the brand name/ logo of other industrial unit situated within the State of West Bengal. 3.. Taking into view of the amended provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancelled in case the petitioner fails to pay the assessed tax after receiving demand notice. The provisions of section 26 of the Act, 1994 never speak of cancellation of registration certificate on the basis of preassessed tax. It is, therefore, submitted that the impugned notice issued by the respondent No. 4 should be cancelled and set aside. 6.. The learned State Representative submits that according to the charging section of the Act, 1994 the tax becomes payable by a dealer and non-payment of such tax certainly attracts the provisions of section 26(11) of the Act, 1994. It is also submitted that the petitioners cannot suffer any injury on the basis of such notice if the proceedings are allowed to be continued and result is withheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. The Chapter 7 of the West Bengal Sales Tax Act, 1994 provides the relevant provisions relating to assessment of tax, imposition of penalty, recovery of tax, etc. On going through those provisions we find that in case, a dealer fails to furnish the returns by the prescribed date penalty may be imposed not exceeding 150 per cent of amount of tax. Where a registered dealer fails to furnish return accompanied by a receipt from a Government Treasury as required under section 30, the Commissioner may order for payment of penalty in addition to the amount of tax so assessed. The relevant rules in this section has been provided in the Chapter XIII of the Rules, 1995. 10.. Therefore, according to the aforesaid relevant sections and rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owable and the taxable turnover is thereby determined, no tax due and payable under the Act can come into existence . 11.. It was similarly held by the honourable Supreme Court in a case reported in [1965] 16 STC 318 (State of Rajasthan v. Ghasilal) as follows: Section 3 of the Rajasthan Sales Tax Act, 1954, which is the charging section, read with section 5 creates the liability to pay the tax. But till the tax payable is ascertained by the assessing authority under section 10, or by the assessee under section 7(2), no tax can be said to be due within section 16(1)(b), for till then there is only a liability to be assessed to tax and there can be no breach of section 16(1)(b). It is, therefore, necessary to quote the relevant se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994 inasmuch as, there is liability to be assessed to tax after filing such return by a dealer. Subsection (11) of section 26, therefore, cannot be invoked against a dealer unless he is assessed to tax. The impugned notice, issued against the petitioner for cancellation of registration certificate in exercise of the power under sub-section (11) of section 26 of the Act, 1994 is, therefore, bad and illegal. 14. The other contention of the learned State representative is that the dealer is not going to suffer injury if the proceeding for cancellation of registration certificate is allowed to continue on the basis of the said notice provided the result is withheld till the final decision of this Tribunal on the issue of constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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