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TMI Blog2017 (9) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of there being an exemption in their favour for the relevant period. Held that: - what stands admitted from the reply of the State Government is that the Petitioners had submitted their return showing nil return, which establishes the fact that the returns had been submitted. Thus, the requirement under Section 26 of the Act of 2005 regarding failure to furnish any return is not available against the present Petitioners. The exemption was withdrawn only on 26.10.2009 and the notices for demand of advance tax were issued on the very second day i.e. on 28.10.2009. From this itself it clearly reflects that the return of the Petitioners must have been filed much before the date of exemption being withdrawn by the respondent author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re P-5 is a notice seeking demand of advance tax of the State, Central and Entry Tax for the aforesaid assessment years. 3. Contention of the learned Counsel for the Petitioners is that the said issuance of notice for advance tax is bad in law, for the reason that it is in total contravention to the provisions of Section 26 of the Chhattisgarh Value Added Tax Act, 2005 (hereinafter referred to as 'the Act of 2005'). According to the learned Counsel for the Petitioners, it is not a case where the Petitioners have failed to deposit the return which is one of the most essential ingredient. Further necessary ingredient is that apart from there being a failure in furnishing the return, the assessee should also fail to pay the tax paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Madhya Pradesh Another, decided on 27.3.2014 in Writ Petition No. 20674 of 2013. 5. Learned Counsel for the State however opposing the writ petitions submits that it is a case where the exemption granted to the Petitioners has already been withdrawn and further the authorities found that there was a default on the part of the Petitioners in furnishing their return at the first instance and also in filling the tax payable during the relevant period and thus notices were issued in accordance with the provisions of Section 26 of the Act of 2005, which cannot be faulted with and the petitions deserve to be rejected accordingly. He further submits that it is a case where the withdrawal of exemption part is still under challenge be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiating a proceeding under Section 26 of the Act of 2005 was not available for the department at the time of issuance of Annexure P-5. 7. Further, what is also required to be looked into is the fact that the contention of the State as regards the deliberate non-compliance of the submission of return by the Petitioners is concerned, the same cannot be accepted in the light of the averment made in para 8 of their reply which states that the Petitioners have submitted their returns. Now, if at all, if there is any dispute so far as the payment of tax is concerned, the same stands disputed on account of the fact that the Petitioners state that they have got the exemption which was only withdrawn on 26.10.2009 and the return having been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and two others (decided on 1-9-99) and the contention was repealled by S.P. Khare, J. in the observations contained in paragraphs 6 and 7 of the judgment which reads as extracted below: (6) A careful reading of sections 26, 27, 32 and 33 goes to show that the registered dealer is bound to deposit the sales tax in advance in respect of those items for which there is no dispute or objection. In case there is any dispute between the dealer and the authorities regarding any item on which the tax is payable or the dealer claims any exemption which is not admissible according to the taxing authorities, this dispute has to be decided by an order of assessment after hearing the dealer. The two provisos to - section 27 lay down that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case, it is clear that in the cases Itarsi Oils and Flours Ltd., Raipur Vs. Asstt. Commissioner of Commercial Tax, Raipur [2000] 33 VKN 59, Fabworth (India) Ltd. and another Vs. Commercial Tax Officer, Raipur and 3 others [2000] 33 VKN 516, Sanghi Brothers (Indore) Pvt. Ltd., Indore Vs Asstt. Commissioner, Commercial Tax, Indore others (2005) 6 STJ 333 (MP) and Kailash Raghuvanshi another Vs. State of Madhya Pradesh others, (2005) 6 STJ 336 (MP) the principle with regard to recovery of advance tax has been dealt with and it has been held in all the aforesaid cases that when the dealer has disputed his liability to pay the tax and when returns are being filed, no order can be passed in the matter of demanding advance tax before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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