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TMI Blog2020 (9) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted fact that the impugned order of assessment dated 29.09.2016 passed by the Assessing Officer covers the period of the assessment from 2011-12 to 2014-15 meaning thereby the tax period in question ended on 31st March, 2015 - As provided under sub-section (1) of Section 33 of the TVAT Act, 2004, no assessment under Section 31 and 32 shall be made after expiry of five years from the end of the tax period to which the assessment relates. Section 33 of the TVAT Act, 2004 lays down the prescription of limitation of 5 years from the end of the tax period to which the assessment relates. The revision petitioner contends that the order of assessment for the years 2011-12 to 2014-15 being ultra vires of Section 33 need to be quashed and set aside and in consequence the order dated 28.02.2017 of the Revisional Authority upholding the assessment order should also be quashed. Apparently the assessment order dated 29.09.2016 for the tax period from 2011-12 to 2014-15 was made after issuing notice dated 31.08.2016 to the assessee. The tax period of 2011-12 ended on 31st March, 2012 for which the assessment order was made on 29.09.2016 within the period of limitation provided under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer as well as the Revisional Authority, as quoted above, are not disputed by the petitioner. Evidently, the assessment order dated 29.09.2016 imposing mandatory penalty equal to 0.1% of the turnover of the company of the assessee was imposed on the assessee in terms of Section 53(3) after hearing the assessee. Therefore, the assessment order with regard to imposition of penalty equal to 0.1% of the turnover of the company of the assessee suffers from no illegality. Whether the assessee can be saddled with the liability of non submission of the audited accounts of his company in absence of prescribed form in terms of Section 53(1) of TVAT Act? - HELD THAT:- It is no case of the petitioner that he could not submit the audit report within time in terms of Section 53(2) of the TVAT Act due to non availability of such Form. Assessment Order upheld except the penalty equal to 15% imposed by the assessing officer - petition allowed in part. - CRP No. 28/2017 - - - Dated:- 9-9-2020 - Mr. Justice S. Talapatra And Mr. Justice S.G. Chattopadhyay For the Appellant(s) : Mr. Biplabendu Roy, Adv. For the Respondent(s) : Mr. A.Nandi, Adv. JUDGMENT [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45,20,40,160.00 4,25,290.00 64,30,270.00 Tax payable 16,11,606.40 2,26,02,008.00 53,161.25 8,68,086.45 Total tax payable 2,51,34,862.00 Less : VAT Paid 2,51,25,703.00 9,159.00 Interest 7,419.00 Addl. Penalty@15% as discussed 1,374.00 Add. Penalty @0.1% and the TOD U/S 53(3) of the TVAT Act,2004 4,99,186.00 Net due 5,17,138.00 2012-13 2013-14 5% 13.5% 5% 13.5% 14.5% TOR 47,78,73,245.00 1,18,76,107.00 44,36,45,341.00 80,37,580.00 52,41,149.00 TOD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 70(2) of the TVAT Act,2004 alleging, inter alia, as under: (a) The Assessing officer imposed tax, interest and penalty on the Revision petitioner by enhancing his gross turnover against the law. (b) The reply of the Revision Petitioner in response to the show cause notice issued by the Assessing Authority was not duly considered by the Assessing Office. (c) The Assessing Officer did not consider the fact that the Revision Petitioner never defaulted in payment of tax. (iv)His petition filed under Section 70(2) of the TVAT Act, 2004 was registered as Revision Case no 18 of 2016 before the Commissioner of Taxes [Revisional Authority]. The said Revisional Authority after hearing the parties decided the matter vide order dated 28.02.2017, which is as under: Shri Ajit Kr.Jha, the petitioner is present. Sri A.Barman, Superintendent of Taxes, HQ, is also present and presented the case records. ............................................. Heard Sri Jha and perused the case records. Section 53(3) of the TVAT Act,2004 provides If any dealer liable to get his accounts audited under sub-section (1) fails to get his accounts audited and furnish a true copy of the aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has contended that the Revision Petition is devoid of merit because admittedly the Revision petitioner did not submit the audited accounts in time in terms of Section 53(1) and (2) of the TVAT Act, 2004 resulting in loss of revenue of the State for which the assessing authority rightly imposed penalty on the Revision petitioner in exercise of its statutory power. It is argued by Mr. Nandi that order dated 28.02.2017 passed by the Revisional Authority in Rev. Case No.18 of 2017, therefore, does not call for any interference. [6] The moot questions arising for our consideration in this Civil Revision are as follows: (i)whether the impugned assessment order dated 29.09.2016 passed by the Superintendent of Taxes(Assessing Officer) Agartala for the period from 2011-12 to 2014-15 is ultra vires the provisions of Section 33 of the TVAT Act, 2004 being hit by limitation. (ii)whether the imposition of penalty@15% on the petitioner on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner. (iii)whether the penalty equal to 0.1% of the turnover was imposed on the assessee in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 24 without any sufficient cause (a) fails to comply with the requirements of the notice issued under sub-section (2) of section ; or (b) fails to furnish any return by the prescribed date as required under sub-section (2) of section 24; or (c) being required to furnish revised return, fails to furnish the revised return by the date prescribed under sub-section (3) of section 24; or (d) having paid the tax payable according to a return in time, fails to furnish along with the return proof of payment made in accordance with sub-section (4) of section 24; the Commissioner may, after giving the dealer reasonable opportunity of being heard, direct him to pay in addition to any tax, interest and penalty under sub-section (3) payable or paid by him, a penalty of a sum of rupees one hundred per day of default subject to a maximum of rupees ten thousand. (5) Any penalty imposed under this section shall be without prejudice to any prosecution for any offence under this Act. (6) For the purposes of this Act, any return signed by a person who is not authorized under sub-section (5) of section 24 shall be treated as if no return has been filed. [9] Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom such dealer. (5) If the Commissioner is satisfied that the dealer, in order to evade or avoid payment of tax (a) has failed to furnish without reasonable cause, returns in respect of any period by the prescribed date; or (b) has furnished incomplete and incorrect returns for any period; or (c) has availed himself of tax credit to which he is not entitled to; or (d) has followed such method of accounting which does not enable the Commissioner to assess the tax due from him, he shall, after giving the dealer reasonable opportunity of being heard, direct him to pay, in addition to tax and interest payable by 34 him, a penalty not exceeding one and half times of the tax due but which shall not be less than 10% of that amount. [10] Section 33 provides limitation bar for assessment of tax which reads as follows: 33. No assessment after five years:- (1) No assessment under section 31 and 32 shall be made after the expiry of five years from the end of the tax period to which the assessment relates; Provided that in case of offence under this Act for which proceeding for prosecution has been initiated, the limitation as specified in this su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [13] In order to decide the case from the right perspective, it would be appropriate to make a reference to the decision of the Apex Court in A.V. Fernandez vs. The State of Kerala reported in AIR 1957 SC 657 wherein the Apex Court vide para 29 of the Judgment laid down the law with regard to the interpretation of taxing statutes. The Apex Court has held as follows: 29 ..It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) No assessment under Sections 31 and 32 shall be made after expiry of five years from the end of the tax period to which the assessment relates. [20] Apparently the assessment order dated 29.09.2016 for the tax period from 2011-12 to 2014-15 was made after issuing notice dated 31.08.2016 to the assessee. The tax period of 2011-12 ended on 31st March, 2012 for which the assessment order was made on 29.09.2016 within the period of limitation provided under Section 33 of the TVAT Act and obviously, therefore, the assessment order for the years 2013-14 2014-15 also made on 29.09.2016 was well within the period of limitation of five years. As such the contention of the petitioner that the assessment order is hit by limitation is devoid of merit. [21] The next point which arises for our consideration is whether the imposition of penalty@15% on the petitioner on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner. [22] The assessment order dated 29.09.2016 (Annexure-IV) reads as follows: Since the dealer has tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be prescribed. [27] Sub-section(2) of Section 53 provides that the dealer shall furnish true copy of the report obtained by him under sub-section (1) to the Commissioner of Taxes by the end of the month after expiry of the period of six months during which the audit as under sub-section(1) would have been completed. [28] Sub-section (3) of Section 53 provides that where the dealer fails to get his accounts audited and furnish the audit report within time as under sub-section (2), the Commissioner of Taxes shall, after giving the dealer, reasonable opportunity of hearing, impose on him, in addition to tax payable, a sum by way of penalty equal to 0.1% of the turnover. [29] The law is thus clear that imposition of penalty equal to 0.1% of the turnover for non submission of the audit report in terms of Section 53 of the TVAT Act is mandatory. The assessment order dated 29.09.2016 as well as the order dated 28.02.2017 of the Commissioner of Taxes in Revision Case No 18 to 21 of 2016 go to show that the dealer failed to submit the audit report within time in terms of Section 53 of the TVAT Act. Neither before the assessing officer nor before the Revisional Authority (Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the audited accounts for the branches of the particular state. We have no intention to evade any tax or evade any statutory obligation. We would like to inform you that we had filed monthly return as well as tax payment within due time. [30] Further, the order dated 28.02.2017 of the Revisional Authority (Commissioner of Taxes) runs as follows: Sri Ajit Kr. Jha, the petitioner is present. Sri A.Barman, Superintendent of Taxes, H.Q is also present and presented the case records. . Sri Jha submitted that the Superintendent of Taxes, Charge-VIII, Agartala has imposed penalty U/S 53(3) of the TVAT Act, 2004 for non-submission of statement of audited accounts as required U/S 53(1) and 53(2) of the TVAT Act,2004. He further submitted that the report of audited accounts for the years under assessment were prepared within the time as prescribed in the TVAT Act,2004 but due to some internal problem the report could not be submitted in due time and were submitted during hearing of assessment cases. He also submitted to waive penalty as revenue was not affected for such non-submission . [31] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rintendent of Taxes (Assessing Authority) not only disallowed the claim of the Petitioner s return(s) in making transactions by From F but also determined the Turnover in short(TOD) ex-parte without serving notice following the mandate of the Act levying tax, interest and penalty upon the Petitioner under Section 31(1), 25(4) 53(3) of TVAT Act,2004 for delay in submission of return(s) though statutory penal interest was deposited against such delay in submission of return(s) and also imposed penalty @0.1% under Section 53(3) of TVAT Act, 2004 for non submission of Audited Balance Sheet of the Company in due time. It is to be noted that prior to the Notice of Assessment, no notice was issued by the Superintendent of Taxes(Assessing Authority), Charge-VIII under Section 27 of TVAT Act,2004 for scrutiny of return and for such non-submission of Audited Balance Sheet of the Company under Section 53 of TVAT Act,2004 though it is well known to the Ld. Assessing Authority that the Company sends its goods covered under Form F under the CST Act, 1956 into the State of Tripura and the return(s) against such transactions filed by the petitioner was/were all known to him as the returns we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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