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TMI Blog2011 (7) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... th the present writ application. The writ petitioners as an occupier of the jute mill and the registered dealer, submitted the return for four quarter ending on March 31, 2003 with the declaration that the gross purchase of raw jute for the relevant period was to the tune of Rs. 41,97,00,192. It was also disclosed that the raw jute to the tune of Rs. 18,75,95,975.32 was purchased from outside the State of West Bengal. The Joint Commissioner, West Bengal Corporate Division, however, disbelieved the claim of the inter-State purchase of raw jute to the tune of Rs. 14,46,93,149.32 observing that the raw jute worth Rs. 14,46,93,149.32 had been purchased by the petitioners within the State of West Bengal and accordingly, levied huge purchase tax thereon. Challenging the aforesaid order dated June 30, 2005 for the aforesaid period covering four quarter ending on March 31, 2003, the writ petitioners preferred an appeal. During the pendency of the appeal, the Assistant Commissioner, Commercial Tax, West Bengal Corporate Division, initiated a proceeding under section 76 of the West Bengal Sales Tax Act, 1994 alleging that the writ petitioners had furnished incorrect particulars regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, according to Mr. Bhattacharjee, the moment the dispute arising out of the original order of assessment has been resolved ending in a certificate of settlement issued under section 8(1) of the SOD Act, the said certificate should be conclusive as to the dispute to which it related and no matter covered by such certificate of settlement should be reopened in any proceeding or review or revision or in any other proceeding under the Act of 1994. Mr. Bhattacharjee, therefore, contends that, the learned Tribunal below acted illegally in merely reducing the amount of penalty by overlooking the fact that there was no scope of imposition of any penalty whatsoever after the State had decided to resolve the dispute by issuing the certificate. Mrs. Roy, the learned advocate appearing on behalf of the State/ respondents, has, on the other hand, opposed the aforesaid contention advanced by Mr. Bhattacharjee and has contended that the settlement of dispute in terms of the SOD Act has nothing to do with the proceeding for penalty for concealment of sale or furnishing of incorrect particulars of sale or purchase as provided in section 76 of the Act. Mrs. Roy submits that by the settleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm, and in such manner, as may be prescribed, on or before (the 30th day of June, 2007) or by such later date as the State Government may, by notification in the Official Gazette, specify from time to time. (2) A separate application shall be made by an applicant for different periods under each of the relevant Acts. (3) The applicant shall send a copy of the application made under sub-section (1) to the appellate authority or the revisional authority before whom the appeal or revision, as the case may be, is pending, within seven days from the date of making such application before the designated authority: Provided that in a case where the provisions of sub-section (4) apply, the applicant shall also send a copy of the application made under sub-section (1) to the revisional authority before whom the revision is pending for the same period. (4) Where an appeal is pending before the appellate authority, and a revision is pending before the revisional authority, in respect of one and the same period, an application referred to in sub-section (1) shall only be made in respect of the pending appeal. (5) Where a certificate of settlement has not yet been issued under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the period referred to in the proviso, become final and the dispute in respect of which the application has been made shall be deemed to have been settled for the purpose of this Act and the relevant Act; (b) the notice referred to in the second proviso is issued, the dispute shall not be deemed to have been settled until the discrepancy, or the short-payment, mentioned in that notice is rectified or made to the satisfaction of the designated authority and the designated authority signifies such satisfaction to the applicant in writing: Provided also that in a case where the provisions of sub-section (4) of section 5 apply and a provisional certificate is issued under this sub-section in respect of the appeal pending for a period, the revision pending for such period shall also be deemed to have been settled under clause (a) of the third proviso on expiry of the period mentioned in the second proviso. (2) The designated authority, for reasons to be recorded in writ ing, may refuse to settle a dispute, or rectify or amend a certificate of settlement issued under sub-section (1): Provided that no order adversely affecting the appellant shall be passed without allowing the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation or particulars, such designated authority may, for reasons to be recorded in writing and after giving the applicant a reasonable opportunity of being heard, revoke the certificate of settlement issued under subsection (1) of section 8. (2) If a certificate of settlement is revoked under sub-section (1), the appeal or revision, or both, as the case may be, under the relevant Act, covered by such certificate of settlement, shall, notwithstanding the provision of section 9 or section 10, stand revived or reinstated immediately upon such revocation, and such appeal or revision or both, as the case may be, shall be decided in accordance with the provisions of the relevant Act, as if no settlement of the arrear tax, penalty or interest in dispute in such appeal or revision or in both, as the case may be, has ever been made under this Act." On a plain reading of the aforesaid provisions contained in the SOD Act, it is clear that by virtue of the aforesaid provisions, the State Government, offers for settlement of any dispute, which is the subjectmatter of any pending appeal or revision. If the dealer complies with the provisions of the SOD Act for arriving at such settlement, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed against the dealer for imposition of penalty, although by accepting the offer of settlement, the pending appeal of the dealer has since abated. We have already pointed out that the State Government has discretion not to settle a dispute in a given case, where the allegation is serious in nature. Since the State Government has not exercised its discretion of not settling a dispute in the facts of the present case, it is also precluded from proceeding with the course of action under section 76 of the Act notwithstanding the fact that the basis of such proceeding is settled. We, thus, set aside the proceeding for imposition of penalty in view of the clear bar created under section 9 of the SOD Act and hold that on a certificate of settlement being issued under section 8(1) of the SOD Act, there was no further scope of proceeding against the writ petitioners for penalty for suppression of the material fact on the basis of the finding recorded by the assessing officer in his order dated June 30, 2005. Consequently, we set aside the order of the learned Tribunal and quash the proceeding for penalty. The writ petition is, thus, allowed to the extent indicated above. Since the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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