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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 ..... e been heard together and would be disposed of by this common judgment. For convenience, we may record facts from WP(C) No.1106 of 2019. [2] Petitioner is a dealer and was registered under the Tripura Value Added Tax Act, 2004 (TVAT Act, for short) at the relevant time. The Superintendent of Taxes, Udaipur issued a notice on 31.01.2019 to the petitioner under Section 53(3) of the TVAT Act conveying to the petitioner that despite requirement under the said provision the petitioner failed to furnish audited accounts for the years 2010-11, 2011- 12 & 2012-13 by the end of the month after expiry of the period of six months. This was in violation of Section 53(1) & 53(2) of the TVAT Act and would invite penalty @ 0.1% of the gross turnover as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-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 Rs. 2.17 lakhs (rounded off) of Rs. 4 lakh (rounded off) and Rs. 5.36 lakhs (rounded off) for the years 2010-11, 2011-12 & 2012- 13. This common order for three years the petitioner has challenged by filing three separate petitions. These petitions are pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed time. The expression "as prescribed" would mean as prescribed under the Chartered Accountants Act. Counsel submitted that for the year 2018- 2019 the petitioner had voluntarily filed such audited report. The defence raised by the petitioner therefore that in absence of the format for filing the report being prescribed the petitioner could not do so earlier, therefore, is an afterthought and is not a valid defence. [7] Section 53 of the TVAT Act pertains to Audit of accounts and reads as under : "53. Audit of accounts - (1) Where in any particular year, the gross turnover of a dealer exceeds forty lacs rupees or such other amount as the Commissioner, may, by notification in the official Gazette specify, then such dealer shall get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer exceeds forty lacs of rupees or such amount as may be specified, the dealer has to get his accounts audited by an accountant within six months from the end of the year and obtain a report of such audit in prescribed form duly singed and verified by the accountant and providing such particulars as may be prescribed. As per the explanation an accountant means a Chartered Accountant or a Cost Accountant. Sub-section (2) of Section 53 provides that a true copy of such report shall be furnished by the dealer to the Commissioner by the end of the month after expiry of period of six months during which the audit would have been completed. As per sub-section (3) of Section 53 if any dealer liable to get his accounts audited under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in these petitions of the State Legislature not having prescribed the format under the Rules. Further, this is only an oral contention made by the counsel for the department before us. Neither in the order imposing penalty nor in the affidavits filed in 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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