TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 929
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.... the validity of the assessment order and imposition of penalty under Section 10(d) read with Section 10­A of the Central Sales Tax Act, 1956 (hereinafter referred to as "the CST Act" for short). 4. The facts of the case briefly stated are as under :­ The petitioner is engaged in Transport business and is granted dealership by Bharat Petroleum Corporation Limited ('BPCL' for short) in the territory of Daman and Diu. The petitioner has obtained registration under the "The Daman and Diu Value Added Tax Regulation, 2005" (hereinafter referred to as 'the Regulation of 2005' for short) in Form ST 1. 5. The third respondent - Assistant VAT Officer (AVO) VAT department issued notices dated 30/6/2017 in Form - VI for initiating assessment for 2013­14 to 2016­17 under CST Act. The respondent No.3 passed an assessment order dated 13/9/2017 imposing maximum permissible penalty under Section 10(d) read with 10­A of the CST Act for misuse of Form C. Against the said assessment order dated 13/9/2017 the petitioner preferred First Appeal before respondent No.4 - Deputy Commissioner, VAT Department, Daman, on 20/11/2017. The First Appeal was dismissed by resp....
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....ax Act, 1956 (hereinafter referred to as 'CST Act' for short), Citizen's Charter in respect of the office of Administrative Tribunal, Panaji­Goa and the Daman and Diu Value Added Tax (Amendment) Regulation, 2017 as well as Notification dated 17th July, 1970 issued by the Administrator of Goa, Daman and Diu. 10. Learned Senior Counsel submitted that Section 73(1) of the Regulation of 2005 provided for constitution of an Appellate Tribunal. The same is not yet constituted under the Regulation. In his submission, therefore, in view of Section 24 of the General Clauses Act, 1897, the Administrative Tribunal functioning under the Goa, Daman and Diu Administrative Tribunal Act, 1965 (hereinafter referred to as 'Administrative Tribunal Act, 1965') would continue to function till such time a Tribunal is constituted under Section 73(1) of the Regulation of 2005. It is, therefore, the contention of learned Senior Counsel that the Second Appeal ought to be entertained and heard by the Administrative Tribunal functioning under the Administrative Tribunal Act, 1965. 11. Per contra, it is the submission of learned counsel appearing on behalf of the respondents, that it ....
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....ame into force. 13. Learned counsel for the respondents would submit that Section 74(1) has provided a mechanism to the aggrieved person to redress his grievance by providing for two appeals. Relying on Section 66 (1) which provides for appointment of a person to be Commissioner of Value Added Tax, he submits that it is the Commissioner who is overall in­charge of the administration of this Regulation and therefore, it would always be within his jurisdiction to entertain an appeal against the orders passed by the authorities appointed to assist him. This in his submission would be a proper reading of powers of Commissioner conferred on him in terms of Section 66 (1), 66(2), 66(3) and 66(4) which reads as under :­ 66. (1) For carrying out the purposes of this Regulation, the Government shall appoint a person to be the Commissioner of Value Added Tax. (2) The Government may, to assist Commissioner in the administration of this Regulation, appoint as many Joint Commissioners of Value Added Tax, Deputy Commissioners of Value Added Tax, Assistant Commissioners of Value Added Tax, Value Added Tax Officers and such other persons with such designations as the Government thinks n....
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....unal". The relevant portion of which reads thus : "73.(1) The Government shall, as soon as may be after the commencement of this Regulation, constitute an Appellate Tribunal consisting of one or more members, as it thinks fit, to exercise the powers and discharge the functions conferred on the Appellate Tribunal by or under this Regulation. Provided that where the Appellate Tribunal consists of one member, that member shall be a person who has held a civil judicial post for at least ten years or who has been a member of the Indian Legal Service not below Grade III for at least three years or who has been in practice as an advocate for at least ten years, and where the Appellate Tribunal consists of more than one member, one such member shall be a person qualified as aforesaid: Provided further that the Government may, until the Appellate Tribunal is constituted under this Regulation, notify any other Appellate Tribunal constituted or established, under any State law for the time being in force, with the consent of the concerned State Government and such other Appellate Tribunal shall hear and dispose of the appeal in accordance with the provisions of this Regulation till such ti....
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....as may be conferred upon them and perform such duties as may be required, by or under this Regulation. 22. Chapter XII of the Regulation provides for hearing of Appeals, Disputes and Questions. Section 74(1) provides for a remedy to challenge an assessment or order or decision made under this Regulation. Section 74(1)(a) provides for an Appeal to the Joint Commissioner or Deputy Commissioner or Assistant Commissioner having jurisdiction, when such decision has been made or order has been made and assessment has been made by any Value Added Tax Officer or Assistant Value Added Tax Officer. Section 74(b) provides for an appeal against an assessment made under the Regulation or any other order made under the Regulation to the Commissioner, when such decision has been made or order has been made or assessment has been made by the Assistant Commissioner, Deputy Commissioner or Joint Commissioner. 23. As indicated earlier, learned counsel for the respondents would persuade us to read clause (a) and (b) of Section 74(1) to mean that after an order has been passed under Section 74(1) (a) by the Appellate authority, the aggrieved person would have a remedy to file a second appeal to the C....
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.... of appeals, no further appeal against an order passed in appeal can lie to the Commissioner under clause (b) of Section 74(1) as a second appeal is not expressly provided in the Regulation. On the contrary, Section 74 has restricted the right of appeal to only one. In this view of the matter, the respondent No.2 - Commissioner, though in­charge of the administration exercising control over the officers mentioned in clause (a) of Section 74(1), cannot confer authority on himself to hear an appeal against orders passed by his sub­ordinate authorities in exercise of their appellate powers. 25. In this view of the matter, when the language of Section 74(1), especially the proviso is so clear and unambiguous, we have no hesitation in holding that the Commissioner has no jurisdiction to hear and decide the second appeal. The impugned order passed by the respondent No.2 dated 9/11/2018, therefore, will have to be set aside for lack of jurisdiction. 26. Let us now examine the question whether the Administrative Tribunal constituted under the Administrative Tribunal Act, 1965 can exercise the powers of the Appellate Tribunal under Section 73 (1) of the Regulation of 2005. In 1964....
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....u Sales Tax Act, 1964 (4 of 1964) read with the Government Notification No. Fin(Rev)/2­36/Part/1310/70 dated 17­7­1970, the Tribunal hereby makes the following regulations, namely :­ 1. Short title and commencement. ­ (a) These Regulations may be called the Goa, Daman and Diu Sales Tax Tribunal Regulations, 1972. (b) They shall come into force at once. 2. Definitions. ­ In these regulations "Act" means the Goa, Daman and Diu Sales Tax Act, 1964. 3. Procedure to be followed by the Tribunal in appeals or revision. ­ The Administrative Tribunal in deciding an appeal or a revision application under the provision of the Act shall have the same powers and shall follow the same procedure provided for in this behalf in the Goa, Daman and Diu Administrative Tribunal Act, 1965 (6 of 1965) as if the appeal or the revision application was filed under the said Act." B.M. Masurkar Chairman Panaji, 13th April, 1972. 31. The Gazette Notification would reveal that as regards the procedure to be followed by the Tribunal in Appeals or revision under the provisions of the Act shall have the same powers and shall follow the same procedure provided for in this b....
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....ons and discharge the duties entrusted to it by or under the Goa, Daman and Diu Administrative Tribunal Act, 1965 or any other law for the time being in force. The District and Sessions Judge, Daman and Diu, is appointed as Chairman of the Daman and Diu Administrative Tribunal. 35. Section 106(1) of the Regulation of 2005 provides that the Daman and Diu Sales Tax Act, 1964, as in force in Daman and Diu is hereby repealed. Clause (2) of Section 106 provides that notwithstanding anything contained in sub­section (1), such repeal shall not affect the previous operation of the repealed Act or any right, title, entitlement, obligation or liability already acquired, accrued and incurred thereunder. Clause (3) of Section 106 provides that : "(3) For the purposes of sub­section (2), anything done or any action taken including any appointment, notification, notice, order, rule, form or certificate in the exercise of any powers conferred by or under the repealed Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Regulation, as if this Regulation were in force on the date on which such thing was done or action was taken, and all a....
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....at the Notifications issued on 17th July, 1970 and on 13th April, 1972 are saved under the Regulation of 2005 and the repeal of the Sales Tax Act, 1964 has no effect on these Notifications. In fact, sub­section (3) of Section 106 itself provides that anything done or any action taken including any notification in the exercise of any powers conferred by or under the repealed Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Regulation, as if this Regulation were in force on the date on which such thing was done or action was taken. Section 73(1) read with Section 106 of the Regulation of 2005 along with Section 24 of the General Clauses Act would clearly demonstrate that the Administrative Tribunal empowered by the Sales Tax Act, 1964 (now repealed) would continue to exercise the powers of the Appellate Tribunal as per the Notifications till such time the Government constitutes or notifies a Tribunal under Section 73(1) of the Regulation of 2005 or till such time the earlier notifications are superseded. We do not find that such a course is inconsistent with provisions of the Regulation of 2005. It is well settled that a law ....