TaxTMI 
TaxTMI 
TaxTMI 
2018 (3) TMI 1611
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....he relevant time, the petitioner on such exports would receive benefits under the Duty Entitlement Passbook Scheme ["DEPB Scheme" for short]. Such accrued DEPB was freely transferable. The petitioner, depending on its business exigencies would often sale such DEPB to the importers of various goods. Between Department and the petitioner and other similarly situated exporters, there were long standing disputes about the nature of such DEPB benefits and in particular whether upon its transfer, the transaction would invite Sales-tax. 2.2 The petitioner had filed returns under the Sales Tax Act, 1969 ["the Act" for short] for assessment years 1994-95 to 1999- 2000. These assessments were pending before the Assessing authority, when the State Legislature inserted Section 41AA in the said Act. We would take note of the background leading to insertion of the said provision and the detailed scheme for settlement of tax disputes contained in the said section a little later. For the time being, we may record that under the said newly inserted Section 41AA by the Gujarat Sales Tax [Second Amendment] Act, 2001 with effect from 1st September 2001, an eligible assessee could apply for the benef....
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....n which no sales tax was paid. On account of this, the books of the assessee were seized. He, therefore, assessed the petitioner's liability arising out of such transactions and held that the petitioner was liable to pay Rs. 10,98,696/= by way of tax, interest and penalty. He passed separate orders of the same date for the remaining assessment years also, levying unpaid duty with interest and penalty; figures of course would change in each year. 2.7 The petitioner filed revision petitions before the Tribunal and challenged the very jurisdiction of the revisional authority to assess the petitioner's returns once the petitioner's declarations under Section 41AA were accepted. The Tribunal, by the impugned judgment dated 31st August 2009 dismissed such revision petitions. The Tribunal's two significant observations were as under : "6. The learned revising authority has specifically noted in the order that account books and record of the applicant were seized by the officers of Sales Tax Department for the year 1994-95. The applicant/dealer did not disclose this fact at the time of hearing and filed application under Section 41 [AA]. Therefore, the applicant/dealer has misguided ....
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....tion of the petitioner under Section 41AA of the Act was to be rejected by the revisional authority, the proceedings thereafter had to commence for assessment under Section 41 of the Act. In any case, the revisional authority could not have carried out the assessment. Counsel also contended that the revisional authority could not have imposed penalty when no such proceedings were initiated by the competent authority. Counsel submitted that the Tribunal proceeded on completely erroneous facts. When the petitioner made a declaration, there was no impounding of the petitioner's documents nor the petitioner was subjected to any search. 3.1 In support of his contentions, counsel for the petitioner relied on the following decisions : 3.2 In case of A.St. Arunachalam Pillai v. M/s. Southern Roadways Limited & Anr., reported in AIR 1960 SC 1191 in which, in the context of the revisional powers of the Government, the Supreme Court observed that the Government had power only to do that which the Regional Transport Officer could have done, but had refused to do. 3.3 In the case of State of Bombay v. Pandurang Vinayak & Ors., reported in AIR 1953 SC 244, in which, in the context of deeming ....
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....ion 41 of the Act pertains to assessment of taxes. Sub-section [1] of Section 41 provides that an amount of tax which is due from a registered dealer shall be assessed separately for each year. Sub-sections [2] and [3] of Section 41, which are relevant for our purpose read as under :- "41. Assessment of taxes : [1] xx xx xx [2] If the Commissioner is satisfied that the declarations or returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such declarations or returns. [3] If the Commissioner is not satisfied that the declarations or returns furnished in respect of any period are correct and complete and he thinks it necessary to require the presence of the dealer or the production of further evidence; he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his declarations or returns, or to produce such evidence as is specified in the notice. On the date specified in the notice, or as soon as may be thereafter, the Commissi....
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.... tax due from the dealer in respect of such declaration or return shall, irrespective of whether a notice of such declaration or return shall, irrespective of whether a notice under sub-section (3) of section 41 is issued or not, be deemed to have been assessed, if the dealer at his option makes payment of one thousand rupees for each specified period in the Government treasury on or before the 30th November, 2001; (b) in the case of a dealer whose tax payable for the specified period to which the declaration or return relates does not exceed fifteen thousand rupees, but does not exceed twenty-five thousand rupees, the amount of tax due from such dealer in respect of such declaration or return shall, irrespective of whether a notice of such declaration or return shall, irrespective of whether a notice under sub-section (3) of section 41 is issued or not, be deemed to have been assessed, if the dealer at his option makes payment of one thousand rupees for each specified period in the Government treasury on or before the 30th November, 2001. (2) The payment made by a dealer under 3[ ] of sub-section (l) shall be- (a) as if the dealer had furnished revised declaration or revised ....
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....on, unless such person has been given reasonable opportunity of being heard. (4) Where the Commissioner or the Tribunal rejects any application for revision under this section, the Commissioner or, as the case may be, the Tribunal shall record the reasons for such rejection." 6. As noted, Section 41 of the Act pertains to assessment of taxes. Under sub-section [1] of Section 41, a registered dealer would be assessed separately for each year. Under sub-section [2] of Section 41, if the Commissioner was satisfied that the declarations or returns furnished by a dealer were correct and complete, he would assess the amount of tax due from the dealer on the basis of such declarations or returns. If the Commissioner therefore proceed under sub-section [2] of Section 41, he would merely compute the assessee's tax liability on the basis of declarations made by him in the returns. Under sub-section [3] of Section 41, on the other hand, if the Commissioner was not satisfied about the correctness or completeness of the declarations or returns furnished by the assessee, he could require presence of the dealer or direct him to produce further evidence by issuing a notice in this respect. On th....
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.... additional payments to be made under sub-section [1] of Section 41 would be treated as if the dealer has furnished a revised declaration or return and the payment was towards liability of the dealer under such revised declaration or return. Sub-section [3] of Section 41AA laid down important conditions of eligibility for availing the scheme under Section 41AA. The provision is expressed in negative form, providing that nothing in this section shall apply to a dealer - [a] whose books of accounts, registers, documents have been impounded or seized under Section 59 of the Act, or [b] who has availed of tax exemption or tax deferment under any of the incentive schemes of Government of Gujarat. 9. Analysis of this section would show that the provision was in the nature of a general amnesty. The State Legislature having noted that despite efforts made for simplification of assessments there are large number of pending disputes which had clogged the system, introduced a one-time amnesty scheme. The scheme was peculiar on two counts viz., unlike the settlement schemes under the Income-tax Act, 1961 or the Customs or Central Excise Act, it is not an ongoing scheme and covered only the as....
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.... benefits flowing from the said section. In fact, the section does not envisage any formal acceptance of a declaration by the competent authority. The deeming fiction would automatically and immediately kick in. This is not to suggest that even if a declaration itself is found to be wrong, erroneous or as per the declaration, a dealer is found wanting in any of the conditions, he can still claim benefit of the scheme merely because he had made a declaration. To this extent, the role of the authority certainly is envisaged, but not beyond. To suggest that even when a dealer makes declaration; even if such a dealer is otherwise eligible fulfilling all conditions of Section 41AA of the Act, such a declaration could be rejected, would be wholly incorrect. 11. To suggest that in such a case a dealer may get away with tax evasion since his very initial declaration in the return may itself be incorrect, begs the question. If any such declaration still permitted a scrutiny at the hands of the assessing authority of the correctness of the declarations in the return, the very purpose of inserting Section 41AA would frustrate and the situation would be brought back to the stage of assessment....