2022 (8) TMI 416 - HC - VAT and Sales Tax

Court Invalidates Tax Notification for Non-Compliance

The court found the Notification dated 04.06.2018 invalid due to non-compliance with publication requirements. It determined that the Superintendent of ... Seeking Enforcement of the fundamental rights of the petitioner guaranteed under Part-III of the Constitution of India - Violation of Articles 14, 19(1) (g) and 21 of the Constitution of India - Legality and validity of Notification dated 04.06.2018 issued by the Commissioner of Taxes, Government of Tripura - delegation of powers of the Commissioner of Taxes under Section 31 of the Act to all the Superintendent of taxes posted in Tax Audit Cell to be exercised within the State of Tripura with effect from 31.03.2018 - time limitation - HELD THAT:- The respondents have not placed any official gazette to show that the said notifications have been gazatted as contemplated under Section 85 of the Act. The counter affidavit is also silent about such Gazette Notification. In the absence of which, this court has no hesitation to draw an inference that the requirement under Section 85 has not been complied with. Hence, the notification under challenge is invalid. A fair understanding in taxation law as (a) audit (b) assessment (c) demand/recovery/collection are three different stages and are dealt by different and competent authorities under the statute. Originally under notification dated 01.04.2006, certain powers have been delegated in favour of Superintendent of Taxes. But in notification dated 04.06.2018, the powers under Section 63 are delegated to all Superintendent of Taxes posted in Tax Audit Cell. This power is enhancing the action of the authority in audit cell also as an authority under assessment and an authority for demand and collection of Taxes including imposition of Interest & penalty. It is pertinent to mention that Section 28 has not been delegated. The entire action involving the 5th respondent-authority for issuing the impugned notices imposing the penalty and collecting of interest are the one without jurisdiction. Under Rule 41, the audit authority shall only communicate their finding to the assessing authority. A reading of Section 28 and Rule 45 clearly indicates that role of the audit & assessment authorities under the Act are different. The powers of assessment under the statute are not vested on the audit cell. And in the absence of such, commissioner cannot delegate. The powers of commissioner under section 31 has been delegated to the Superintendent of Taxes by notification dated 01.04.2006 and also the Superintendent of Taxes posted in tax audit cell by notification dated 04.06.2018. It is pertinent to note that the powers delegated under notification dated 01.04.2006 upon the Superintendent of Taxes and powers delegated by notification dated 04.06.2018 upon all the Superintendent of Taxes posted in Tax Audit Cell are altogether different - audit, assessment & collection are three different functions. Collection of penalty under Section 31 (5)(d) unless it is audited and assessment is made, it cannot be construed that the Assessee is liable to pay penalty and as well as interest upon the tax amount. This court is of the opinion that the notification dated 04.06.2018 is in consonance under Section 85 of the Act and also the Superintendent of Taxes posted in Tax Audit Cell can only act as the Audit Authority and not as Assessing Authority or Collection Authority - the impugned notices be treated as audit reports only and the Audit authority shall forward it to the Assessing authority for taking action in accordance with law. Petition disposed off. Issues Involved:1. Enforcement of Fundamental Rights under Part-III of the Constitution of India.2. Violation of Articles 14, 19(1)(g), and 21 of the Constitution of India.3. Legality and validity of the Notification dated 04.06.2018 issued by the Commissioner of Taxes.4. Validity of various notices issued by the Superintendent of Taxes under the Tripura VAT Act, 2004.5. Legality and validity of the proviso to Rule 20 of the Tripura VAT Rules, 2005.Detailed Analysis:1. Enforcement of Fundamental Rights under Part-III of the Constitution of India:The petitioner sought the issuance of a writ under Article 226 for the enforcement of fundamental rights guaranteed under Part-III of the Constitution. The petitioner argued that the actions of the respondents violated their fundamental rights.2. Violation of Articles 14, 19(1)(g), and 21 of the Constitution of India:The petitioner contended that the actions of the respondents, including the issuance of various notices and the delegation of powers, violated Articles 14 (right to equality), 19(1)(g) (right to practice any profession or to carry on any occupation, trade, or business), and 21 (right to life and personal liberty) of the Constitution.3. Legality and Validity of the Notification dated 04.06.2018:The petitioner challenged the Notification dated 04.06.2018, which delegated the powers of the Commissioner of Taxes under Section 31 of the Tripura VAT Act to all Superintendents of Taxes in the Tax Audit Cell. The court examined whether this delegation was in accordance with Section 85 of the Tripura VAT Act, 2004. The court noted that the respondents failed to provide evidence of the notification being published in the official gazette, as required by Section 85. Consequently, the court inferred that the notification was invalid due to non-compliance with the statutory requirement.4. Validity of Various Notices Issued by the Superintendent of Taxes:The petitioner challenged multiple notices issued by the Superintendent of Taxes, including notices directing the petitioner to produce accounts and documents, submit segregated accounts, show cause for penalties, and pay balance tax with interest. The court analyzed the roles of audit, assessment, and collection under the Tripura VAT Act, concluding that these functions are distinct and should be performed by different authorities. The court found that the delegation of powers under the notification dated 04.06.2018 improperly allowed the audit authority to act as the assessing and collection authority, which was beyond its jurisdiction. Consequently, the court deemed the impugned notices to be audit reports only and directed that they be forwarded to the assessing authority for further action.5. Legality and Validity of the Proviso to Rule 20 of the Tripura VAT Rules, 2005:The petitioner also challenged the proviso to Rule 20, which required the deposit of 90% of the tax payable for the month or quarter ending on 31st March within 31st March itself. The court did not provide a specific ruling on this issue, as the main focus was on the delegation of powers and the validity of the notices issued.Conclusion:The court concluded that the notification dated 04.06.2018 was invalid due to non-compliance with the requirement of publication in the official gazette. It also held that the Superintendent of Taxes in the Tax Audit Cell could only act as the audit authority and not as the assessing or collection authority. The impugned notices were to be treated as audit reports and forwarded to the assessing authority for appropriate action. The court's order was specific to this case and not to be treated as a precedent for other cases. The writ petition was disposed of accordingly.