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TMI Blog2023 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... Though, the TDS certificate was received by the petitioner on 01.07.2015 but he did not revise the returns for the month of March, 2015 on any day prior to 30.07.2015. If the same would have been revised on any day prior to 30.07.2015; then the proceeding under Section 40(2) of the Act would not have been initiated; rather the conduct of petitioner in not revising the returns despite admittedly having received the TDS certificate from the government on 01.07.2015, appears to be indicative of the mens- rea of the petitioner. The proceeding u/s 40(2) was initiated on 30.07.2015 and notice was issued to the petitioner. Thereafter, the returns were revised only after initiation of the proceeding and issuance of notice to the petitioner and therefore, any attempt to revise the returns after the initiation of proceeding will be hit by the mischief of rule 14(7) of JVAT Rules, 2006. Further, Section 40(2) states that if the prescribed authority in the course of any proceeding or upon any information, which has come into his possession before assessment is satisfied that any registered dealer has concealed any sales or purchases or any particulars thereof, with a view to reduce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - HON BLE MR. JUSTICE APARESH KUMAR SINGH AND HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. Salona Mittal, Advocate For the Respondents : Mrs. Darshana Poddar Mishra, AAG-I Heard learned counsel for the parties. 2. The instant writ application has been preferred for following reliefs:- (i) For the issuance of an appropriate writ/order/direction including a writ in the nature of certiorari, quashing and setting aside the order dated 07.06.2022 (Annexure-8) passed by the Learned Commercial Taxes Tribunal, Jharkhand at Ranchi in JR 47 of 2020 (A.Y. 2014-15-VAT Proceedings) dismissing the revision application filed by the petitioner, especially since the Learned Tribunal has failed to appreciate the impact of the regular assessment order on the penalty imposed before assessment. (ii) For the issuance of an appropriate writ/order/direction including a writ in the nature of certiorari, quashing and setting aside the order dated 24.07.2019 (Annexure-4) passed by the Learned Commissioner of Commercial Taxes in Revision Case No. CC(S) 460 of 2016 by which the revision petition has been dismissed in a summary manner. (iii) For the issuance of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of March 2015 amounting to Rs.6,73,233/-. Petitioner filed its revised return for the month of March, 2015 on 5.8.2015 declaring its turnover for the said month to be Rs.6,73,233/-. After the filing of the revised turnover for the month of March 2015, the Petitioner s gross turnover for A.Y. 2014-15 amounted to Rs.15,74,250/- as explained herein below: Month Turnover July, 2014 Rs.3,50,783/- October, 2014 Rs.5,50,504/- March, 2015 Rs.6,73,233/- Total Rs.15,74,520/- On 28.08.2015, penalty order was passed under Section 40(2) of the JVAT Act. The Respondents have notionally calculated tax on the concealed turnover @ 14% to be Rs.65,976/-. Consequently, penalty of Rs.1,97,930/- was levied being three times the tax on the concealed turnover. Thus, demand notice of only the penalty amount was issued. On 29.04.2016, appellate order was passed dismissing the appeal of the Petitioner. On 7.3.2018 regular assessment order was passed for the year 2014 - 15 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which it received by the Contractor for the month of March 2015, in the first week of July 2015. It is these figures that have been reflected in the revised return and not the figure alleged by the Department to have been received by the Petitioner. Thus, the Petitioner did not, in fact, act upon the action initiated by the Department, but on its own volition. (c) Basis of levy of penalty does not exist in the instant case. Learned counsel submits that the only ground on which the penalty has been imposed upon the Petitioner is that its revised return has been held to be non-acceptable. However, the entire basis of the Respondent s case has ceased to exist because of the fact that the Petitioner s revised returns have been accepted in the regular assessment proceedings. In the regular assessment proceedings, it has been categorically held that:- (i) The revised returns for the month of March 2015 is accepted as there was some error in the original return. (ii) No evidence of tax evasion was found against the Petitioner. Having accepted the revised returns for the month of March 2015, the entire basis for levy of penalty under Section 40(2) had gone. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be totally brushed aside when the sole issue revolves around revision of return by the petitioner-company. He further referred paragraph Nos.10-13 which is quoted herein below:- 10. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, it transpires that the primary dispute involved in the instant writ application pertains to imposition of penalty under Section 40(2) of the JVAT Act on the alleged ground of concealment of purchases for an amount of Rs.1,55,69,332/- made by the Petitioner despite the fact that the said amount was duly reflected in its revised return. The petitioner has annexed the entire order-sheet pertaining to penalty proceeding for the period in dispute to demonstrate that order was passed without granting sufficient opportunity to the Petitioner. Admittedly, for the quarter ending September, 2015, the last date for filing of revised return was up-to January, 2016. However, before assessment proceeding was initiated on 09.01.2016 i.e., before the expiry of period of revising of return in dispute which would be itself evident from the penalty order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause. (a) fails to comply with the requirements of the notice issued under sub-Section (2) of Section 29; or. (b) fails to furnish any return by the prescribed date as required under [sub- Section (1) or sub-Section (2) of Section 29; or (c) being required to furnish revised return, fails to furnish the revised return by the date prescribed under sub-Section (3) of Section 29; (d) 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. Explanation Return for this purpose shall mean and include the Monthly Abstract. Return for any tax period, Revised Return(s) as well as the Annual Return.] 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner given the language used in Section 40(2) containing the penal provision. In fact it cannot be said to be an act of deliberately filing incorrect returns as the revised return has been duly accepted by the Assessing Officer. Reference in this regard may be made the judgment passed in the case of Commissioner of Sales Tax, U.P. V. Sanjeev Fabrics reported in (2010) 9 SCC 630 wherein the Hon ble Apex Court has laid down the law at para-24, 25 30 as under:- 24. Whether an offence can be said to have been committed without the necessary mens rea is a vexed question. However, the broad principle applied by the courts to answer the said question is that there is a presumption that mens rea is an essential ingredient in every offence but the presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals and both must be considered. 25. Although in relation to the taxing statutes, this Court has, on various occasions, examined the requirement of mens rea but it has not been possible to evolve an abstract principle of law which could be applied to determine the question. As already stated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Shiv Jyoti Enterprises (supra) is not applicable due to different facts and it is also well settled that mens-rea is not an essential element for imposing penalty for breach of civil obligation. She relied upon the judgment passed in the case of Union of India Ors. Vs. Dharamendra Textile Processors Ors. reported in (2008) 13 SCC 369. 7. Having heard learned counsel for the parties and after going through the documents available on records and the averments made in the respective affidavits it appears that on 27.4.2015 the petitioner filed NIL Returns for the month of March though before that on 30.3.2015 itself it had raised a bill for Rs 6,73,233/- and this fact finds mention in the order dated 29.4.2016 of the Appellate Court and nowhere denied by the petitioner. Further, since the petitioner was aware of having raised bill of Rs 6,73,233/-, there was no occasion for the petitioner to file returns for the month of March, 2015 showing it be NIL returns. This filing of NIL returns itself is self- sufficient to make out a case under Section 40(2)(b) of the JVAT Act, 2005. The petitioner himself has admitted the fact that it had received the TDS certificate from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the 40(2) of the JVAT Act, 2005 was initiated on 30.07.2015. Thus, the revising of the returns was done afterthe initiation of the proceeding under section 40(2) of the JVAT Act, 2005 and this tribunal is considered that the mischief of rule 14 (7) of the JVAT Rules, 2006 will come into play and the revising of returns will not be a hindrance to the proceeding under section 40(2) of the JVAT Act, 2005. Thus, the revising of the returns after initiation of proceeding under Section 40(2) of the JVAT Act, 2005 is of no avail to the Petitioner. Moreover, the petitioner has stated at paragraph 15 of the writ petition that On such basis proceedings under section 40(2) were initiated and a notice was allegedly served to the Petitioner on 30.7.2015. It is submitted that the petitioner is not in possession of such letter dated 30.7.2015. 8. It further transpires that since notice initiating proceedings u/s 40(2) of the JVAT Act was served on the petitioner and the same has not been denied, it can be inferred that the fact that the proceedings had been initiated u/s 40(2) was well within the knowledge of the petitioner and therefore to circumvent the proceedings-initiated u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturns after initiation of the proceedings u/s 40(2) was apparently done to circumvent the said proceedings. The Revised Returns which were later accepted by the Department cannot be a ground to absolve the petitioner from his liability to pay penalty u/s 40(2) which was rightly initiated against him. 11. Mr. Salona Mittal, learned counsel for the petitioner has heavily relied upon the decision of M/s Shiv Jyoti Enterprises (Supra) and contended that the present case is covered by the said decision as this court has likewise held that acceptance of GTO and revised quarterly return in the original assessment proceeding could not be brushed aside and there was no mala-fide on behalf of the petitioner. At this stage it is pertinent to see the facts which are distinguishable in nature. In the case of Shiv Jyoti (Supra) for the quarter ending September, 2015 the last date for filing revised return was of up to January, 2016. However, before that the assessment proceeding was initiated on 09.01.2016 i.e, before the expiry of the period of revising the return in dispute which would be itself evident from the penalty order dated 02.02.2016. This clearly goes to show that the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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