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TMI Blog2023 (2) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... t to evade payment of tax. In the entire Counter Affidavit no mens-rea has been alleged by Respondent-authorities. Thus, it appears that the contention of the petitioner that at best penalty under Section 30(4)(d) of the JVAT Act could have been imposed upon petitioner is correct. This specific plea of Petitioner is uncontroverted by Respondent-authorities. There is no dispute with respect to the fact that before assessment proceeding under Section 40(2) of the JVAT Act and regular assessment proceeding under Section 35 of the JVAT Act are mutually exclusive to each other. However, acceptance of GTO and revised quarterly return in the original assessment proceeding could not be totally brushed aside when the sole issue revolves around revision of return by the Petitioner-company. Admittedly, the present dispute did not pertain to filing of incorrect return with intention to suppress or conceal purchases; rather the dispute pertains to filing of revised return belatedly. Thus, the imposition of penalty under Section 40(2) of the JVAT Act upon Petitioner is not sustainable in the eye of law and if the justification of the Respondents in this regard is accepted then the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 40(2) of the Jharkhand Value Added Tax Act, 2005 (for short JVAT Act, 2005) by the Assessing Officer has been upheld. (iii) For issuance of an appropriate writ, order or direction to the respondent-authorities to refund an amount of Rs.17,35,000/- which has been realized by initiating recovery proceeding under Section 46(1) of the JVAT Act from the banker of the Petitioner-company. 2. Brief fact of the case is that the petitioner is engaged in the business of works contract on behalf of various entities including Government Entities. For the period in dispute, Petitioner purchased pipes from outside the State of Jharkhand for an amount of Rs.1,55,69,332/- towards execution of works contract. The said inter- state purchases were made through valid road permits duly generated from the official website of State of Jharkhand. Petitioner filed its original quarterly return and, inadvertently, reflected interstate purchases as Nil . On 09.01.2016 Before assessment proceeding under Section 40(2) of the JVAT Act was initiated against the Petitioner by Respondents on the sole ground that for the period in dispute, it filed quarterly returns by reflecting therein inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order before the Commissioner of Commercial Taxes in Revision Case C.C. (S) No. 767 of 2019. The matter was remanded to the assessing officer. Thereafter, on 17.03.2020, pursuant to remand order passed by the Commissioner Court, a revised assessment order was passed and revised GTO of Rs.6,17,61,159/- was duly accepted by the assessing officer. A tax liability of Rs.24,70,658/- was determined against the petitioner. Against the total turnover of Rs.6,17,61,159/-, VAT @ 4% amounting to Rs.24,70,446/- was already realized by Respondent being amount deducted from the bills of Petitioner in advance. In this regard, Form JVAT-400 being Certificate of Tax Recovery at Source was also issued to the Petitioner and after adjusting the said amount, a demand notice of Rs.212/- was issued to the petitioner by Respondent No. 3. 6. During the remand penalty proceeding, Petitioner brought to the notice of learned Appellate Court the fact that error which crept in while filing original quarterly return has been subsequently rectified by the Petitioner by filing revised returns and regular assessment proceedings have also been done and returns have been accepted. However, despite the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal assessment proceeding of the petitioner. Thus, on one hand, by accepting return and turnover of petitioner, the respondents have determined tax liability in the original assessment proceeding and on the other hand respondents have disputed the revised quarterly return and levied penalty under Section 40(2) of the JVAT Act. Thus, levy of penalty under Section 40(2) of the JVAT Act is not justified. It is a settled preposition of law that revision of return can be allowed even after expiry of time period prescribed and time period prescribed for revision of returns is directory and not mandatory. In this context, Petitioner is placing reliance upon the following judgments: (i) Commercial Tax Officer Vs. C.R. Varghese reported in MANU/KE/1248/2018. [Relevant Para 1, 2, 4, 8, 9, 12, 13, 15, 16] (ii) Super Plast Poly Products India Pvt. Ltd. Vs. State of Kerala reported in (2018) SCC OnLine Ker 23311 [Relevant Para 7 to 10] (iii) Alwaye Sugar Agency Vs. Assistant Commissioner (Assmnt) and Others reported in MANU/KE/1886/2017 [Relevant Para 1, 2 and 5] (iv) Aar Kay Agro Spring Industries Vs. State of Madhya Pradesh and Others reported in (2011) SCC O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting from end of the tax period i.e., from 30.09.2015. Therefore, there has been admitted default in filing the quarterly returns showing it to be Nil when admittedly as per SUGAM-G there was purchase transaction worth more than Rs.1.5 crores. He further submits that under Sub-rule 7, if there is any incorrect information contained in the quarterly return, the same can be rectified within period of 3 months from the end of the respective tax period within reasons to be given and such returns shall be termed to be revised returns. Annual return is to be filed in Form JVAT 204. Thus, filing of quarterly returns is the mandate of law and the same can be revised within period of 3 months from the end of the tax period. In this case the returns are related to the period 1st April, 2005 to 30th September, 2015 and notice by the department was issued after a lapse of 3 months which is the statutory period for revising the return. He lastly submits that the Hon ble Apex Court has held that legislative intent is not required to be explored if the plain reading of the statute does not create any ambiguity. Proceeding under section 40(2) and proceeding under Section 35, 36 of the JVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration certificate has been suspended under sub- section (7) of Section 25 (a) has concealed any sales or purchases or any particulars thereof, with a view to reduce the amount of tax payable by him under this Act, or (b) has furnished incorrect statement of his turnover or incorrect particulars of his sales or purchases in the return furnished under sub- section (1) of Section 29; or otherwise, the prescribed authority shall, after giving such a dealer an opportunity of being heard, by an order in writing direct that he shall, in addition to any tax payable which is or may be assessed under Section 35 or 36 or 38, pay [by way of penalty a sum equal to thrice the amount of tax on the concealed turnover or on concealed or incorrect particulars of suppression or concealment or for furnishing incorrect particulars; on the amount of tax payable under the Act or on the suppressed turnover or on concealed turnover or for furnishing incorrect particulars. The interest shall be payable before the completion of the assessment and for determining the amount of interest payable, the prescribed authority shall quantify the amount of tax payable provisionally under this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) and sub-section (2) of Section 29; without any sufficient cause; the prescribed authority shall, after giving such a dealer an opportunity of being heard in the manner prescribed, impose a penalty of the rate not exceeding rupees fifty for every day of such default for any month or any tax period, subject to a maximum of rupees twenty five-thousand in a year. 12. It further transpires from records that the purchases were made on the strength of Form SUGAM-G (Annexure-1 Series), and, therefore, no occasion arises for suppression of any purchases with an intent to evade the payment of tax otherwise. As a matter of fact, Petitioner would not have utilized SUGAM-G for the purchases of goods in question. Admittedly, the present dispute did not pertain to filing of incorrect return with intention to suppress or conceal purchases; rather the dispute pertains to filing of revised return belatedly. Thus, the imposition of penalty under Section 40(2) of the JVAT Act upon Petitioner is not sustainable in the eye of law and if the justification of the Respondents in this regard is accepted then the provision of Section 30 more particularly; sub-section 4 would be rendered otiose. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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