TaxTMI 
TaxTMI 
2017 (9) TMI 5
X X X X Extracts X X X X
X X X X Extracts X X X X
....this Court is proceeding to decide the two writ petitions by this common order. 2. Challenge in the present writ petitions is to the notice dated 28.10.2009 (Annexure P-5) and the consequential revenue recovery proceeding drawn on 27.11.2009 (Annexure P-6). Annexure P-5 is a notice seeking demand of advance tax of the State, Central and Entry Tax for the aforesaid assessment years. 3. Contention of the learned Counsel for the Petitioners is that the said issuance of notice for advance tax is bad in law, for the reason that it is in total contravention to the provisions of Section 26 of the Chhattisgarh Value Added Tax Act, 2005 (hereinafter referred to as 'the Act of 2005'). According to the learned Counsel for the Petitioners, it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Itarsi Oils and Flours Ltd., Raipur v. Asstt. Commissioner of Commercial Tax, Raipur, 2000 (3) VKN 59, and lastly he has relied upon the recent decision of the Division Bench of the Madhya Pradesh High Court in the case of M/s Birla Corporation Ltd. v. The State of Madhya Pradesh & Another, decided on 27.3.2014 in Writ Petition No. 20674 of 2013. 5. Learned Counsel for the State however opposing the writ petitions submits that it is a case where the exemption granted to the Petitioners has already been withdrawn and further the authorities found that there was a default on the part of the Petitioners in furnishing their return at the first instance and also in filling the tax payable during the relevant period and thus notices were is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m this itself it clearly reflects that the return of the Petitioners must have been filed much before the date of exemption being withdrawn by the respondent authorities. If that be so, it appears to be a case where the necessary ingredient required for initiating a proceeding under Section 26 of the Act of 2005 was not available for the department at the time of issuance of Annexure P-5. 7. Further, what is also required to be looked into is the fact that the contention of the State as regards the deliberate non-compliance of the submission of return by the Petitioners is concerned, the same cannot be accepted in the light of the averment made in para 8 of their reply which states that the Petitioners have submitted their returns. Now, if....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessment as per other provisions contained in section 33. A similar question had arisen before this Court in WP 982 of 1999; M/s Itarsi Oil and Flours Ltd., Ganjpara, Raipur and Another Vs. Assistant Commissioner of Commercial Tax, Raipur, Circle II and two others (decided on 1-9-99) and the contention was repealled by S.P. Khare, J. in the observations contained in paragraphs 6 and 7 of the judgment which reads as extracted below: "(6) A careful reading of sections 26, 27, 32 and 33 goes to show that the registered dealer is bound to deposit the sales tax in advance in respect of those items for which there is no dispute or objection. In case there is any dispute between the dealer and the authorities regarding any item on which the tax....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sh referring to the decision of Itarsi Oils and Flours Ltd. (supra) and Fabworth (India) Pvt. Ltd. (supra) and other cases, held that: "Having heard learned counsel for the parties and on consideration of the facts and circumstances of the case, it is clear that in the cases Itarsi Oils and Flours Ltd., Raipur Vs. Asstt. Commissioner of Commercial Tax, Raipur [2000] 33 VKN 59, Fabworth (India) Ltd. and another Vs. Commercial Tax Officer, Raipur and 3 others [2000] 33 VKN 516, Sanghi Brothers (Indore) Pvt. Ltd., Indore Vs Asstt. Commissioner, Commercial Tax, Indore & others (2005) 6 STJ 333 (MP) and Kailash Raghuvanshi & another Vs. State of Madhya Pradesh & others, (2005) 6 STJ 336 (MP) the principle with regard to recovery of advance tax ....