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TMI Blog2010 (9) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... revised return, within the prescribed period, cannot be equated with evasion of tax attracting penal provisions of section 75A, especially, when the dealer had, admittedly, paid his taxable liability within the due period and the State had not suffered any loss of Revenue. Because of what have been discussed and pointed out above, this court is of the considered view that the imposition of penalty, in the present case, suffers from complete non-application of mind. The tax imposed and the demand made are ex facie illegal and cannot be sustained. Appeal allowed. - W.P. (C) No. 363 of 2009 - - - Dated:- 29-9-2010 - ANSARI I.A. , J. JUDGMENT:- I.A. ANSARI J. Whether a dealer, within the meaning of section 2(8) of the Tripura Value Added Tax Act, 2004 (in short, the TVAT Act, 2004 ), can be made liable to pay penalty for evasion of tax if the dealer has, within the financial year, paid all taxable dues within due time, but has committed error, while submitting return with regard to the taxable liability and did not file, thereafter, revised return within the prescribed period and if so, when such a penalty can be imposed on the dealer? I have heard Mr. A.K. Bhowmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of demand aforementioned, a representative of the petitioners appeared with the explanation that the reflection of less purchase, in the return, was due to a mistake, though the books of account had correctly reflected the purchases made and this proved that there was no intention to suppress the purchases made nor was there any intention to evade tax. Respondent No. 4, however, concluded that the explanation, offered by the petitioners' representative, was not acceptable inasmuch as there might be a mistake in filing return by a dealer, but the dealer, in the present case, having not submitted revised return showing correct figures, shall be held to have attempted to evade payment of tax. Yet another reason, recorded, for holding the petitioners, as dealer, responsible for imposition of penalty under section 75A, was that if the dealer had recorded all purchases, in his return correctly, then, the figures, embodied in the books of accounts, should have been reflected in the return, but the return did not tally with the books of account in the sense that the return showed less taxable return of the dealer than what actually was taxable return as per the books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the said products are made from outside the State and are brought through permits issued by the respondents under the provisions of the TVAT Act. I say that all the goods are entered into stock registers and are sold to retailers maintaining accounts and such accounts are audited by Chartered Accountant. I say that as per books of accounts of the petitioner's total sale for the financial, year 2008-09 amounted to Rs. 2,49,95,789 out of which total sale for which four per cent VAT is charged amounts to Rs. 95,33,613 and total sale for which 12.5 per cent VAT is charged amounts to Rs. 1,72,62,176. I say that accordingly, the tax payable for the sale for which four per cent VAT is charged is Rs. 3,81,346 and that for which 12.5 per cent VAT is charged is Rs. 21,57,924 and as such the petitioners were required to pay in total VAT amounting to Rs. 25,39,271 which was duly paid by 12 monthly challans during the financial year. I annex hereto a sale statement of the petitioners for the financial year 2008-09 as per books of accounts showing the sale for which four per cent tax is leviable and the sale for which 12.5 per cent tax is leviable and also showing the payments and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale, for the financial year 2008-09, being of Rs. 2,49,95,789 and out of this total sale of Rs. 2,49,95,789, four per cent VAT is chargeable on their transactions of sales, which amount to a sum of Rs. 95,36,613 and 12.5 per cent VAT is chargeable on transaction of sales, amount to a sum of Rs. 1,72,62,176 and that the tax payable, on the sales, at four per cent VAT, is Rs. 3,81,346 and the tax payable, on the sales, at 12.5 per cent VAT, is Rs. 21,57,924 and, thus, the petitioners were required to pay, in all, tax amounting to Rs. 25,39,271, which had been duly paid by 12 monthly challans during the said financial year. The fact that the total VAT amounting to Rs. 25,39,271 had been paid by 12 monthly challans, during the financial year 2008-09, is also not in dispute. In the backdrop of the above case, which the petitioners have set up, it is extremely important to note that on a pointed query made by this court, it could not be disputed, on behalf of the respondents, that the books of account clearly and correctly reflected the sales and purchases made by the dealer. There is also no mistake in the books of account as far as the taxable liability of the dealer is concerned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to show cause as to whether there was or there was not any sufficient cause in their failure to furnish revised return within the prescribed period, no imposition of penalty, for failure to file revised return, was possible under section 25(4)(c). As far as section 75A is concerned, this section reads as under: 75A. Notwithstanding anything contained elsewhere in the Act, if the Commissioner, in course of any proceeding under this Act is satisfied that any dealer has evaded in any way the liability to pay tax, he may direct that such dealer shall pay by way of penalty in addition to the tax payable by him, a sum not exceeding one and half times of that amount but which shall not be less than ten per cent of that amount: Provided that no order under this section shall be made unless the dealer has been heard or has been given a reasonable opportunity of being heard. From a careful reading of section 75A, it becomes clear that penalty may be imposed, in addition to the tax payable by a dealer, if the Commissioner is satisfied that any dealer has evaded, in any way, the liability to pay tax. Thus, mere failure to pay tax cannot be penalised under section 75A. Besides t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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