9911796707
TMI Blog2008 (12) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. G.K. Joshi, Senior Advocate assisted by Mr. R.K. Joshi, Advocate for the petitioner and Mr. D. Saikia, learned Standing Counsel, Finance Department for the respondents. The petition was heard on merits at the motion stage and the records having been produced on behalf of the Revenue, it is being disposed of finally by this order. The factual foundation of the debate is provided by the pleaded averments in the petition. The petitioner has introduced itself to be a private limited company incorporated under the Companies Act, 1956, with its branch office amongst others at Bharalumukh, Guwahati. It claims to be a registered dealer under the Act as well as the Assam Value Added Tax Act, 2003 carrying on business in soyabean refined oil. In course of the business, it receives the above commodity from its principal, M/s. Ruchi Soya Industries Private Limited, Mangliagaon, Indore (M.P.), on stock transfer basis for sale in the State of Assam as well as beyond, on the latter's behalf. The stocks so received are entered in the books of account maintained regularly and the sales thereof are duly recorded in the sales registers. The petitioner has asserted that it files its monthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refor. The petitioner has contended that the said Revenue authority insisted upon a written undertaking by it to the effect that the challan No. chek/30 dated July 3, 2003 covering 1,236 tins was not mentioned in the form B and that on receipt of the goods the same would be accounted for and that tax including penalty thereon would be paid by it. The said authority having spelt out the terms as above with the assurance that the RRs along with the permission in form B would be released to the petitioner on such an undertaking so as to enable it to receive the consignment from the railways, the petitioner submitted a petition dated July 11, 2003 incorporating the statements as suggested by respondent No. 3. According to the petitioner, even after the submission of the above petition, the RRs were not released for which it had to represent before the Deputy Commissioner of Tax, Government of Assam, on July 12, 2003 for redress and it was after great persuasion that respondent No. 3 on July 12, 2003 handed over the RRs along with the copy of form B containing the permission for taking delivery of consignments from the railways. The petitioner has averred that it thereafter took release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue its remedy with the said authority and participated in the hearing of the revision petition before respondent No. 4, Additional Commissioner of Taxes, Assam, wherein the Assistant Commissioner of Taxes, Unit C, Guwahati, represented the Revenue. It also submitted as required a written submission along with photocopies of the permission of the Superintendent of Taxes in form XIV under No. 33 dated July 30, 2003, railway receipt No. F-929538 dated July 22, 2003 challan/gate pass and invoice dated July 22, 2003. It having transpired immediately thereafter that the aforementioned documents accompanying the written submissions were not relevant to the issue under adjudication and had been filed inadvertently, the petitioner on October 16, 2007 filed a petition pointing out the above and requested the revisional authority to ignore the same while deciding the lis. The petitioner further sought to explain that while taking delivery of the consignment of 12,360 tins from the railways after obtaining permission from respondent No. 2 in form B/form XIV, it negligently did not retain the photo-copies of the countersigned RRs as well as the said form for its records in its haste and concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 3 having acted upon the report dated July 10, 2003 of the Inspector of Taxes without affording any reasonable opportunity to the petitioner to represent against the same. The learned Senior Counsel contended that the revisional authority acted mechanically in passing the impugned order, it having failed to address itself to the grounds urged in the revision petition and the accompanying pleadings. Mr. Saikia in reply has insisted that the instant petition is liable to be dismissed in limine, the petitioner not having exhausted the alternative remedy of appeal under section 5A of the Act. According to the learned counsel, the very fact that the petitioner had mentioned in form B a reduced number of tins of the commodity, it per se demonstrates noncompliance with the prescriptions of section 46 of the Act and, therefore, the order of penalty cannot be faulted with. As by recording a lesser number of tins, the petitioner had visibly endeavoured to evade payment of the tax due, the impugned action is unassailable, he urged. While endorsing the impugned order of revisional authority, Mr. Saikia produced the relevant official records. He, however, admitted that the form B involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , enjoins that a registered dealer before taking delivery of or transporting from any place of delivery referred to therein and despatched from any place outside Assam, produce for countersignature before the assessing officer or Inspector of Taxes, the railway receipt, bill of lading or other document required for the purpose of obtaining delivery of such consignment from the carrier. Thereby the said dealer is required simultaneously to make over to the assessing officer a written declaration in form B annexed therewith in duplicate and duly signed. The assessing officer and the Inspector of Taxes, on being satisfied about the correctness of the statements made and particulars contained in the declaration in form B would countersign the railway receipt, bill of lading and other documents and the date of counter-signature of the aforesaid document and endorse the official seal thereon. The notification requires that one copy of the declaration would have to be returned to the dealer and the other copy retained by the officer concerned. Form B mentions the description of the consignment, the quantity, weight and the value thereof. The dealer is also required to disclose the invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated July 11, 2003 therefore cannot be construed to be an unqualified acceptance of its liability to that effect on admission of violation of section 46 by it. The order of penalty on a plain reading reveals that the same is based on reports dated July 10, 2003 and August 16, 2003 of the Inspector of Taxes affirming contravention of section 46 of the Act by the petitioner as well as its admission to that effect in its undertaking/petition dated July 10, 2003 referred to hereinabove, promising to deposit the tax and penalty for the said commission. The petitioner has, inter alia, contended before the revisional authority, violation of the principles of natural justice, it not having been issued a copy of the verification(s) report of the seizing officer before imposing the penalty on the basis thereof. Section 23 of the Act authorizes imposition of penalty in various contingencies as catalogued in sub-section (1) thereof after offering to the dealer a reasonable opportunity of being heard. In the above view of the matter, it was incumbent on the part of the assessing officer to furnish a copy of the verification report(s) to the petitioner before relying on the same in passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments/records seized from the petitioner on July 10, 2003 or the railway receipts or the form B in question. In fact, the learned Standing Counsel for the Revenue in course of the arguments conceded that the form B involved is presently untraceable. The observation of the revisional authority that the seized exhibits included the RRs is not borne out by the records produced before this court. As it is, it has been contended on behalf of the petitioner that the RRs could not have been seized as the same along with the copy of form B duly countersigned by the concerned Revenue authority have been produced before the railway authority for release of the consignment. Be that as it may, the records do not contain any material to support the findings recorded by the revisional authority. In the normal course of things the petition ought to have been allowed without any reservation. However, as the question of revenue is involved, founded on the allegation of contravention of section 46, the rigidity of the prescriptions whereof has already been noticed, it is considered expedient to remand the issue to the Commissioner of Taxes, Assam, for a fresh disposal thereof on the merits after ..... 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