9911796707
TMI Blog2008 (6) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner No. 2 filed an application in form 16 to the Deputy Commissioner, Commercial Taxes, Burrabazar Circle under section 16(3) of the West Bengal VAT Act, 2003 on May 11, 2006 for payment of tax at the compounded rate. As a matter of fact, the firm filed returns for the first three quarters of 2006-07, i.e., quarter ending on June 30, 2006, October 31, 2006 and December 31, 2006 along with the receipted challans showing payment of tax at the compounded rate. In February, 2007 the petitioners have received a show-cause notice dated February 9, 2007 in form 70 from the Deputy Commissioner, respondent No. 1, to prefer objection, if any, fixing the date of hearing on March 13, 2007 against the suo motu revisional proposal to hold that the dealer will be no longer entitled to enjoy the benefit under section 16(3) of the West Bengal VAT Act, 2003 as the dealer imported goods from outside West Bengal in contravention of section 73 of the Act. A written objection dated March 30, 2007 was filed by petitioner No. 2. Subsequently, respondent No. 1 passed the suo motu revisional order on April 23, 2007 and held that the petitioners were not eligible to get the benefit under section 16(3) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned State Representative has submitted that nowhere in section 16(3) or the relevant rule 38 it is prescribed that an order accepting the benefit of compounded rate of tax has to be passed or to be communicated to the dealer. The learned State Representative has argued that the acceptance in such case is deemed and the order is deemed to have been passed which is very similar to deemed assessment provision. It is pointed out that a deemed assessment may be reopened though there was no pre-existence of the order of deemed assessment. While defending the merits of the order passed by the Deputy Commissioner, the learned State Representative contended that the Sales Tax Officer, Raja Katra Charge informed the seizure of goods as well as payment of penalty to the Deputy Commissioner, Burrabazar Circle under memo. No. 3263 dated February 6, 2007 on the basis of which suo motu revisional proceedings were initiated under section 85 of the West Bengal VAT Act, 2003 read with rule 38(6). It is contended by the learned State Representative that once a dealer becomes an importer, he becomes ineligible to enjoy the benefit under section 16(3) of the Act for other years also. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (3) of rule 142 that an assessment order or any other order passed by an authority subordinate to him under the Act and Rules made thereunder is required to be revised by him, on his own motion, under section 85, such revisional authority shall serve upon a notice in form No. 70 with a gist of the proposed order directing him to appear before him and show cause on the date and at the time and place specified in such notice as to why the order referred to therein shall not be revised. The learned State Representative has argued that a deemed order of acceptance was there similar to deemed assessment. As a matter of fact, the provisions are not similar. Section 85 of the VAT Act, 2003 read with rule 143 of the West Bengal VAT Rules, 2005 requires the existence of any other order passed by an authority subordinate to him under the Act and Rules made thereunder is required to be revised by him . Admittedly, no such order is produced before us. Even the suo motu revisional authority did not mention in his order dated April 23, 2007 which order was proposed to be revised. In absence of any order passed by the authority below, section 85 of the Act does not apply. Rule 38(6) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed, for each tax period of the year in lieu of tax payable under sub-section (2), on all his sales: Provided that the registered dealer having liability to pay tax under this Act as stated in this sub-section shall not include (a) an importer; or (b) a manufacturer; or (c) a dealer engaged in execution of works contract; or (ca) a dealer who has purchased tea sold under the auspices of any tea auction centre in West Bengal duly authorised by the Indian Tea Board; or (d) a dealer who transfers goods otherwise than by way of sale within or outside the State; or (e) a dealer who sells goods within the meaning of section 3 of the Central Sales Tax Act, 1956 (74 of 1956); or (f) a dealer who sells goods in the course of import of the goods into, or export of the goods out of, the territory of India within the meaning of section 5 of the Central Sales Tax Act, 1956: Provided further that such dealer shall not be entitled to issue tax invoice referred to in clause (48) of section 2 of the Act: Provided also that a registered dealer who, in addition to the purchase of goods in course of his business in a year, have also received goods from the supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean the said dealer is disqualified once for all the years. Each year is an independent period to be considered separately. The disqualification for first year does not mean disqualification for the subsequent years. The eligibility criteria for each period shall have to be examined separately. As such, the contention of the respondent that a dealer, if once disqualified, shall not be entitled to enjoy the benefit of compounded rate of tax for future year also cannot be accepted as correct. In this case the petitioner-dealer is liable to pay tax with effect from May 14, 2005 and the petitioner-dealer applied for the benefit under section 16(3) of the Act on May 11, 2006 for the year 2006-07. The petitioner-dealer paid penalty for unauthorised import of goods during the year 2005-06. The contention of the learned advocate that contravention of section 73 of the VAT Act does not establish that the applicant-dealer is an importer cannot be accepted as correct. When penalty for contravention of section 73 of the Act is paid by the petitioners, it is admitted that the petitioners imported goods from outside West Bengal. It is not clear to us whether any goods imported during the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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