9911796707
TMI Blog2010 (9) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly against law inasmuch as the respondents have no power to impose any tax on the petitioner without making an assessment in this regard, particularly, when the petitioner has started his production on and from January 12, 2009. Hence, the impugned demand notice cannot be allowed to stand good on record. The refusal, on the part of the respondents, to issue permit, in form XXVI, to petitioner No. 1, and refusal to let the petitioner bring coal to the State of Tripura, on the ground that petitioner No. 1 had not paid the instalments as per the agreement aforementioned, are wholly against the law. In short, thus, the impugned refusal to issue permit and also the impugned notice of demand are wholly arbitrary and without support of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turers of bricks in the State of Tripura, on the other. Under the said agreement, the brick manufacturers were to pay a lump sum amount, as tax, in different instalments, for the financial year 2008-09 and 2009-2010 and it was, on payment of the instalments in due time, that the manufacturers, as dealers, were to receive permits, in form No. XXVI, for bringing coal from outside the State of Tripura for being burnt in brick kilns, the agreement having been entered into by the State of Tripura in the interest of the public so that the public, in general, face no difficulty in purchasing bricks due to failure, on the part of the manufacturers, to pay value added tax (in short, the VAT ) adversely affecting thereby production of bricks and sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, the principal ground of challenge, in this writ petition, being that the petitioner has started production of bricks on December 1, 2009 and it cannot be made liable to pay VAT on the strength of the memorandum, dated July 15, 2008, aforementioned, because the agreement, in question, was not binding on the petitioner inasmuch as the petitioner had not even started production from its factory in the year 2008 and could not have, therefore, become liable to pay VAT as manufacturer and seller of bricks. The respondents contend that since the petitioner has not paid after the first instalment, any sum, in terms of the agreement aforementioned, a notice of demand had been issued directing petitioner No. 1 to pay the said amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u of the provisions of this section. (2) Notwithstanding anything contained anywhere in the Act, the Government may, by notification in the official Gazette, specify any dealer or class of dealers to pay lump sum tax in lieu of tax payable under section 9 of this Act. A bare reading of the provisions, contained in section 15, makes it clear that the Government has been vested with the power of composition of tax payable by a registered dealer. The question of composition of tax arises only when a person incurs taxable liability and not otherwise. If a dealer has not incurred any taxable liability or is not liable to be charged tax, question of composition does not arise. Sub-section (1) of section 15 makes it clear that the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnover of such sales has not exceeded rupees ten lakhs. In the case at hand, the petitioner is not alleging to have made any sale of coal or any sale, within the State of Tripura, of any taxable goods. In such circumstances, no tax can be realized from the petitioner. Independent of the agreement, which the respondents rely upon, there is, admittedly, no taxable liability of the petitioner. The demand, therefore, raised by the respondents, by their impugned notice of demand, dated March 5, 2010, directing the petitioner to pay a sum of Rs. 5,68,578, as tax, is wholly against law inasmuch as the respondents have no power to impose any tax on the petitioner without making an assessment in this regard, particularly, when the petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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