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TMI Blog2021 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... response to these petitions, the department has taken such a stand. As noted, the petitioner had taken the contention of lack of prescription of the audit report in reply to the show-cause notice. While passing the final order of penalty the Superintendent of Taxes has made no reference to the petitioner filing such reports for the subsequent years. Lastly, even if the petitioner has filed such reports for any years subsequent or even previous, its legal contention that in absence of the prescription of the audit report under the Rules, there can be no breach of the condition of sub-section (2) of Section 53, cannot be taken away. Being a pure legal contention, the conduct of the petitioner for a particular period or year, would not estop the petitioner from raising such contention for any other period. The petitioner fairly brought to our notice a decision of Division Bench of this Court in case of Ruchi Soya Industries Ltd. versus the State of Tripura [ 2020 (9) TMI 480 - TRIPURA HIGH COURT] in which a somewhat similar contention was raised by the petitioner to oppose the penalty imposed under sub-section (3) of Section 53 of the TVAT Act - the Division Bench proceeded on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction wherein they commented that the assessing authority has to impose penalty under Section 25(4) and 53(3) of TVAT Act, 2004 and hence, A.G. Audit report is bad in law and liable to be set aside and quashed in no time. 4.9. The Assessing Authority has the duty to read harmoniously the provisions of the Act so as to ascertain the true intention of the Legislature in its proper prospective. While the intention of the Legislature is found to be clear under Section 53 of the TVAT Act, 2004 to provide prescribed format for submission of audited balance sheet but in the instant case o prescribed format was provided by the TVAT Rules, 2005 for the same and on the basis of such non-availability of Form in the Rules the assessing authority cannot impose penalty u/s 53 of TVAT Act, 2004 at the time of assessment and therefore, the Notices under Section 27(2), 25(4) and 53(3) of TVAT Act, 2004 dated 31.01.2019 and 11.02.2019 issued by the Learned Superintendent of Taxes (Assessing Authority), Charge- Udaipur are bad in law. [4] The Superintendent of Taxes, Udaipur passed the impugned order dated 10th June, 2019 under Section 53 of the TVAT Act and levied penalty of ₹ 2.17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rupees or such other amount as the Commissioner, may, by notification in the official Gazette specify, then such dealer shall get his accounts, in respect of that year audited by an accountant within six months from the end of that year and obtain a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. (2) A true copy of such report shall be furnished by such dealer to the Commissioner by the end of the month after expiry of the period of six months during which the audit would have been completed. (3) If any dealer liable to get his accounts audited under subsection (1) fails to get his accounts audited and furnish a true copy of the audit report within the time specified in sub-section (2), the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, impose on him, in addition to any tax payable, a sum by way of penalty equal to 0.1% of the turnover as he may determine to the best of his judgement in his case in respect of the said period. Explanation . - For the purpose of this section, Accountant means (i) a Chartered Accountant within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd furnish a copy thereof within prescribed time as provided in sub-section (2) of Section 53. Under sub section (1) of Section 53 what the dealer is required to do is to obtain a report of audit in prescribed form and which would set forth such particulars as may be prescribed. Thus for a dealer to obtain an audit report, not only the format in which such report would be obtained, the particulars which such report must contain, were also the matters to be prescribed. As provided in sub-section (19) of Section 2 such prescription has to be made under the Rules. Admittedly, in the present case, in the Rules framed by the State Legislature in exercise of rule making powers under the TVAT Act, no such form was prescribed nor obviously the particulars which such report would contain were prescribed. In absence of any such prescription, the Superintendent could not have invoked the provision of sub-section (3) of Section 53 of the TVAT Act. Since as noted, under the Rules neither the form of audit report nor the particulars which such audit report would contain having been prescribed, the question of the dealer having failed to furnish the report would not arise. [11] Sub-section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for any other period. [13] Lastly, learned counsel for the petitioner fairly brought to our notice a decision of Division Bench of this Court in case of Ruchi Soya Industries Ltd. versus the State of Tripura in CRP No.28 of 2017 decided on 09.09.2020 in which a somewhat similar contention was raised by the petitioner to oppose the penalty imposed under sub-section (3) of Section 53 of the TVAT Act. However, after referring to the stand of the petitioner before the authorities, this ground was rejected making following observations : 33. It would appear from the above pleadings 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. [14] Thus the Division Bench proceeded on the basis that the petitioner therein had not raised this ground of non-availability of prescribed form for the report for its failure to file the same within the prescribed time as required under sub-section (2) of Section 53 of the TVAT Act. In this decision the Court thus did not examine the legal contention which has been raised before us by the petitioner in these petitions. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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