9911796707
TMI Blog2008 (12) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to the parties. Ordered accordingly. The recovery proceeding initiated against the petitioner would remain stayed till the disposal of the matter as directed. - W.P. (C) No. 3066 of 2008 - - - Dated:- 16-12-2008 - AMITAVA ROY , J. AMITAVA ROY J. The extraordinary jurisdiction of this court under article 226 of the Constitution of India is sought to be invoked to set at naught the order dated December 20, 2007 passed by the Additional Commissioner of Taxes, Assam, Guwahati, in the revision petition filed by the petitioner under section 36 of the Assam General Sales Tax Act, 1993 (hereafter referred to as, the Act ) assailing therein the seizure of its documents made by the Inspector of Taxes, Unit C, Guwahati, on July 10, 2003 as well as the order dated April 20, 2003 passed by the Superintendent of Taxes, Unit C, Guwahati, imposing a penalty of Rs. 2,14,735 under section 23(1)(h) of the Act for alleged violation of section 46 thereof. Incidentally annulment of the seizure and the imposition of penalty as above has also been prayed for in the instant proceeding, the revision petition having been dismissed by the order impugned. I have heard Mr. G.K. Joshi, Senior A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tins referred to in the RRs and form B attributing the same to be a purposeful effort on its part to avoid the tax payable. The petitioner refuted the charge and produced, a copy of the challan No. Chek/30 dated July 3, 2003 covering 1,236 tins, which had reached it meanwhile by fax and produced the same before the Superintendent of Taxes. The above notwithstanding, respondent No. 2 issued notice under section 44(1) of the above Act directing production of the books relating to transaction of taxable goods on July 10, 2003 and also effected seizure of its documents from its premises on the same date on the purported ground that it had concealed the actual quantity of imported goods leading to evasion of due taxes. Though the petitioner approached the Superintendent of Taxes on July 11, 2003 and sought to convince her against the imputation of concealment or intentional evasion of taxes, the latter did not relent. As the railway rakes were expected to arrive on July 12, 2003 and it was incumbent on the petitioner to take delivery of the consignment in order to avoid demurrage charges for any delay, it implored respondent No. 3 for the necessary permission therefor. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its proposed prosecution and imposition of penalty under section 3 thereof. The petitioner appeared before the said authority thereafter from time to time and reiterated its contention against concealment of turnover and alleged intended evasion of tax. It was thereafter that the petitioner was served with a notice of demand by which penalty of an amount of Rs. 2,14,735 was imposed on it under section 23(1)(h) of the Act. Being aggrieved, the petitioner preferred a revision petition before the Commissioner of Taxes, Assam, under section 36 of the Act on April 5, 2004 impugning the seizure of the documents as well as the order of penalty dated November 24, 2003. As in the meantime a scheme for expeditious settlement of disputes on one-time basis in respect of arrear of tax, penalty or interest and payment thereof under the various Acts including the Act had been formulated under the Assam Taxation (Settlement of Disputes) Act, 2000, the petitioner submitted an application on February 15, 2005 under section 5 thereof before the designated authority, i.e., the Deputy Commissioner of Taxes, Zone-C, Guwahati, seeking relief. The petitioner, however, eventually did not pursue its remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly 11, 2003 submitted under compelling circumstances can by no means be construed to be an admission of infringement of the said statutory provision rendering it liable for the penalty imposed. According to the learned Senior Counsel, the said undertaking in absence of any real infraction of section 46 being non est in law, the same does not tantamount to any waiver of the petitioner's right to legal redress. Mr. Joshi has emphatically urged that the concerned revenue authority having duly endorsed the RRs and permitted the delivery of the consignments on submission of form B by the petitioner, being satisfied against any anomaly or concealment of the particulars thereof following which the goods involved had been released from the railways, the imposition of penalty is in arbitrary exercise of power. As in the facts and circumstances of the case the petitioner is not liable to pay any penalty, the demand thereof is wholly unauthorized, he urged. Mr. Joshi apart from maintaining that violation of section 46 of the Act is an essential prerequisite for invocation of section 23 thereof argued that the order imposing penalty is also vitiated by want of fairness, respondent No. 3 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es restriction on the movement of goods in sub-section (1) thereof ordains that no person shall transport or authorize the transport of from any railway station, steamer station, airport, post office or any other place, whether of a similar nature or otherwise notified in this behalf by the State Government, any consignment of such goods as may be specified by the State Government from time to time by notification in the Official Gazette exceeding such quantities and except in accordance with such conditions as may be specified therein with a view to ensure that there is no evasion of any tax payable under this Act. There is thus a statutory interdiction on the transport of any consignment of goods specified by the State Government in excess of such quantities and except in accordance with such conditions as may be prescribed in a notification issued by it and published in the official gazette. The restrictions mandated are with the avowed objective to provide against evasion of tax payable under the Act. In exercise of the powers conferred by the above statutory provision, the State Government had issued a Notification No. FTX-60/93/Pt./45 dated December 13, 1993 which, inter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e number of railway receipts, bill of lading or other documents and the date of countersignature with the official seal on being satisfied about the correctness of the statements and the particulars made in form B. The eventual objective of the exercise being to guarantee against evasion of tax payable under the Act, logically a strict and meticulous compliance of the prescribed essentialities needs to be insisted upon. The rigour of compliance of the legal mandate noticed hereinabove notwithstanding, the primary burden of demonstrating any infraction thereof is on the Revenue to sustain any action on the basis thereof. The petition/undertaking dated July 11, 2003, submitted by the petitioner before the Superintendent of Taxes, Unit C, Guwahati, per se in the estimate of this court does not amount to an admission on its part of any contravention of section 46 of the Act. The petitioner instead, in its reply dated September 16, 2003 to the notice dated August 18, 2003 of the said authority requiring it to deposit a total amount of Rs. 4,73,802 (Rs. 4,54,751+Rs. 19,051), had in categorical terms refuted the charge of evasion of tax. Its assurance to pay tax including penalty in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 2007 of the petitioner. The petitioner's plea that on the date of submission of the declaration form all supporting documents to cover 1,236 tins were not available with it and that the invoice check/30 dated July 3, 2003 accounted for the entire consignment of the said number of tins had in fact been produced before the Superintendent of Taxes on July 9, 2003/ July 10, 2003 and that following the undertaking insisted upon by the said authority, the RRs and form B were duly counter-signed which enabled it to take delivery of the entire consignment, did not receive any consideration of the revisional authority. It instead concluded that the petitioner had failed to include the supporting documents or materials, which led to establish that 1,236 tins of soyabean refined oil were taken delivery of by it without following the prescribed procedure as per the provisions of the Act. The revisional authority also did not consider the petitioner's plea of the violation of the principles of natural justice for not having been furnished with a copy of the verification report(s) in assailing the impugned order of penalty. The records produced before this court also do not contain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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