TaxTMI 
TaxTMI 
2010 (12) TMI 1274
X X X X Extracts X X X X
X X X X Extracts X X X X
....April 1, 2007 affording opportunity to the dealers who failed to submit return within the prescribed time to furnish return upon payment of 'penalty' as prescribed. Further amendment was made by the West Bengal Finance Act, 2008 (Act 1 of 2008) to Section 32(2) providing payment of 'late fee' in place of 'penalty' with retrospective effect from April 1, 2007, i.e., the date when the first amendment of 2007 came into operation. The writ Petitioners filed three (3) applications before the learned Tribunal challenging the constitutional validity of earlier amendment of Section 32(2) of the VAT Act. While the matter was pending, the second amendment was introduced as aforesaid. The learned Tribunal disposed of those three (3) petitions in R.N. 406 of 2006 on 4.4.2008 observing that the questions raised before it by the Petitioners became academic and were not required to be decided. The Petitioners thereafter filed three (3) new applications as stated above on which the impugned judgment was passed. The learned Tribunal did not find any merit in the contentions raised on behalf of the Petitioners and accordingly, dismissed those applications. The writ Petitioner....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpugned provision of the act in question came into force on and from 1.4.2007 with retrospective effect. So the dealers can not be said to be prejudiced in as much as if they do not want to file return which was due on 1.4.2007 to 31.3.2008 with the 'late fee' then the penal consequences only be attracted under Section 45(2)(a). He contended that the question of imposition of penalty does not arise if the dealers pay 'late fee'. The introduction of 'late fee' provides a special beneficial right to the dealers to avoid the hazard of paying penalty and interest. By paying 'late fee' they are given opportunity to regularise filling of return which they failed to file within time. The impugned levy is not "tax" but "fee" and is well within the legislative competency of State Legislature under Entry No. 66 of list II of the Constitution of India. 6. We have gone through the judgment impugned passed by the learned Tribunal minutely. It appears to us that the learned Tribunal has elaborately discussed the relevant features of the scheme and system of assessment of VAT liability of dealers. The learned Tribunal found that the dealer who has not submitted re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f any, payable according to such return in the manner as provided in Section 31 and shall furnish along with such return, a receipt from the appropriate Government Treasury referred to in that section showing the payment of such amount. Provided that where a dealer required by Sub-section (1) to furnish return for any return period is unable to make payment of the full amount of net tax or interest, or late fee referred to in this Sub-section, payable according to such return, such dealer shall furnish the return without payment of the full amount of such tax or interest or late fee payable according to such return along with an application adducing reasons to the Commissioner for extension of time for making payment of net tax, interest and late fee up to the extended date of payment. Provided further that the Commissioner may, if he is satisfied on the reasons adduced by the dealer in the application referred to in the first proviso, extend, by an order in writing, the time for making payment of such unpaid amount of the (net tax, interest and late fee,) payable thereon on such terms and conditions as he may deem fit and proper. Section 45(2) - In making a provisional asses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the total Net Tax and interest upon payment of "late fee" under the amended provision of Section 32(2) of the Act. Before amendment of the Sub-section (2) by Act-I of 2008. such a dealer could furnish return upon payment penalty and prior to that no such scope was available. The impugned amendment has introduced "late fee" in place of "penalty" which is entirely optional to such a dealer who has failed to furnish return within prescribed period. The dealer is under no compulsion or obligation to furnish return upon payment of 'late fee'. A dealer is still free to choose not to file return after the prescribed period upon payment of 'late fee' and to suffer penal consequences either under Section 45(2) or under Section 46(1) or under Section 46(2) of the Act. 9. There can not be any room of doubt that the amended Sub-section (2) of Section 32 of the Act affords a benefit rather special beneficial right to the dealer to submit return upon payment of 'late fee' even after the prescribed period as rightly commanded by Mr. Basu and found by the learned Tribunal. A dealer may avoid penal consequences by way of regularising the delay in filing return upon payment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act, is not required to pay 'late fee' as well as penalty for non filing of return in time. 14. So, in our view, the learned Tribunal has not at all erred in coming to the conclusion that there is no basis for raising the plea of double jeopardy by the Petitioners. 15. Coining to the point as to competency of the "State Legislature" to impose fee in any matter in the List-II of the schedule VII, suffice it to state that the Entry N0.-66 empowers the State Legislature to levy fees in most general terms in all the matters. If the conditions of a 'fee' are satisfied, the nomenclature given by the legislature is immaterial. 16. An imposition purported to be made under the Entry No. -66 in the List-II of the schedule VII can not be valid if it lacks any of the two characteristics of a 'fee', viz.: a) The authority levying the fee must render some services for the fee levied, however, remote that service may be; and b) The fee realised must be spent for the purposes of the imposition and should not form part of the general revenues of the State. 17. As far as the first characteristic is concerned, we reiterate that the 'late fee' introduced by Act....