TaxTMI 
TaxTMI 
2020 (9) TMI 480
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....anch office at Dhaleswar Road no 16 at Agartala in West Tripura District for carrying out its business within the state of Tripura. (ii) The Superintendent of Taxes, Charge VIII, Agartala being the Assessing Authority vide Assessment Order dated 29.09.2016 imposed penalty on the Revision petitioner in terms of Section 53(3) for non submission of audited accounts for the years 2011-12 to 2014-15. The order dated 29.09.2016 of the Assessing Authority reads as follows: "Since the dealer has tried to conceal the actual taxable turnover by way of suppressing the actual import of taxable goods with a view to evading tax, I hold the dealer guilty of offence under this Act and impose penalty @ 15% of the concealed tax amount besides charge interest as per provisions of the TVAT Act, 2004.The dealer has not submitted audited accounts for the years 2011-12 to 2014-15 as required under Section 53(1) and (2) of the TVAT Act, 2004 which attract penal actions under Section 53(3) of the said Act for the aforenoted year and also impose penalty @0.1% on the turn over determined for the years 2011-12 to 2014-15 and thus complete the assessment in the computation noted below: COMPUTATION (in R....
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....led under Section 70(2) of the TVAT Act, 2004 was registered as Revision Case no 18 of 2016 before the Commissioner of Taxes [Revisional Authority]. The said Revisional Authority after hearing the parties decided the matter vide order dated 28.02.2017, which is as under: Shri Ajit Kr.Jha, the petitioner is present. Sri A.Barman, Superintendent of Taxes, HQ, is also present and presented the case records. ............................................. Heard Sri Jha and perused the case records. Section 53(3) of the TVAT Act,2004 provides "If any dealer liable to get his accounts audited under sub-section (1) fails to get his accounts audited and furnish a true copy of the audit report within the time specified in sub-section(2), the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, impose on him, in addition to any tax payable, a sum by way of penalty equal to 0.1% of the turnover as he may determine to the best of his judgment in his case in respect of the said period". Imposition of penalty equal to 0.1% is mandatory in case of non-submission of the audit report within the time specified in Section 53(2) of the TVAT Act,2004 and it has been ....
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.... interference. [6] The moot questions arising for our consideration in this Civil Revision are as follows: (i)whether the impugned assessment order dated 29.09.2016 passed by the Superintendent of Taxes(Assessing Officer) Agartala for the period from 2011-12 to 2014-15 is ultra vires the provisions of Section 33 of the TVAT Act, 2004 being hit by limitation. (ii)whether the imposition of penalty@15% on the petitioner on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner. (iii)whether the penalty equal to 0.1% of the turnover was imposed on the assessee in terms of Section 53(3) of the TVAT Act after affording reasonable opportunity of hearing to the assessee. (iv)whether the assessee can be saddled with the liability of non submission of the audited accounts of his company in absence of prescribed form in terms of Section 53(1) of TVAT Act; and (v)whether order dated 28.02.2017 passed by the Commissioner of Taxes (Revisional Authority) in Revision Case No.18 of 2017 upholding the assessment order dated 29.09.2016 is bad in law. The legal provisions: [7] To appreciate the ....
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....24; the Commissioner may, after giving the dealer reasonable opportunity of being heard, direct him to pay in addition to any tax, interest and penalty under sub-section (3) payable or paid by him, a penalty of a sum of rupees one hundred per day of default subject to a maximum of rupees ten thousand. (5) Any penalty imposed under this section shall be without prejudice to any prosecution for any offence under this Act. (6) For the purposes of this Act, any return signed by a person who is not authorized under sub-section (5) of section 24 shall be treated as if no return has been filed. [9] Section 31 deals with audit assessment which is as follows: 31. Audit assessment:- (1) Where (a) a registered dealer has failed to furnish any return under sub-section (1) of section 25 in respect of any period; or (b) a registered dealer is selected for audit assessment by the Commissioner on the basis of any criteria or on random basis; or (c) the Commissioner is not satisfied with the correctness of any return filed under section 24, or bonafides of any claim of exemption, deduction, concession, input tax credit or genuineness of any declaration, evidence furnished by a regist....
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...., a penalty not exceeding one and half times of the tax due but which shall not be less than 10% of that amount. [10] Section 33 provides limitation bar for assessment of tax which reads as follows: 33. No assessment after five years:- (1) No assessment under section 31 and 32 shall be made after the expiry of five years from the end of the tax period to which the assessment relates; Provided that in case of offence under this Act for which proceeding for prosecution has been initiated, the limitation as specified in this sub-section shall not apply. (2)Any assessment made or penalty imposed under this Chapter shall be without prejudice to prosecution for any offence under this Act. [11] Section 35 provides for exclusion of time period in computing the period of limitation for assessment which is as follows: 35. Exclusion of time period for assessment:-In computing the period of limitation specified for assessment or reassessment, as the case may be, the time during which any assessment or reassessment proceeding remained stayed under the order of a competent Court shall be excluded. [12] Section 53 of the Act deals with audit of accounts and provides for penalty for n....
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....ions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities." [14] The Apex Court reiterated the same principle of law in Ajmera Housing Corporation and Anr. Vs. Commissioner of Income Tax reported in (2010) 8 SCC 739 wherein the Apex Court vide para 36 of the judgment held as follows: "36. It is trite law that a taxing statute is to be construed strictly. In a taxing Act one has to look merely at what is said in the relevant provision. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. There is no room for any intendment. There is no equity about a tax. (See: Cape Brandy Syndicate Vs. Inland Revenue Commissioners (1921)1KB 64 and Federation of A.P. Chamb....
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....sessment order for the years 2013-14 & 2014-15 also made on 29.09.2016 was well within the period of limitation of five years. As such the contention of the petitioner that the assessment order is hit by limitation is devoid of merit. [21] The next point which arises for our consideration is whether the imposition of penalty@15% on the petitioner on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner. [22] The assessment order dated 29.09.2016 (Annexure-IV) reads as follows: "Since the dealer has tried to conceal actual taxable turnover by way of suppressing the actual import of taxable goods with a view to evading tax, I hold the dealer guilty of offence under this Act and impose penalty @15% of the concealed tax amount besides charge interest as per the provisions of the TVAT Act, 2004" [23] In the case in hand, admittedly no separate show cause notice in terms of Section 75A was issued to the dealer before imposition of 15% penalty on him. At this juncture it would be appropriate to reproduce Section 75A of the TVAT Act which reads as under: "75A. Notwithstanding anything con....
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....addition to tax payable, a sum by way of penalty equal to 0.1% of the turnover. [29] The law is thus clear that imposition of penalty equal to 0.1% of the turnover for non submission of the audit report in terms of Section 53 of the TVAT Act is mandatory. The assessment order dated 29.09.2016 as well as the order dated 28.02.2017 of the Commissioner of Taxes in Revision Case No 18 to 21 of 2016 go to show that the dealer failed to submit the audit report within time in terms of Section 53 of the TVAT Act. Neither before the assessing officer nor before the Revisional Authority (Commissioner of Taxes) the assessee ever pleaded that he submitted the audit report in terms of Section 53(1) and (2) of the TVAT Act within the time specified in sub-section (2) of Section 53. Rather he pleaded before the Assessing Authority as well as the Revisional Authority (Commissioner of Taxes) that he could not submit the audit report within time. The following extract of the assessment order dated 29.09.2016 would be useful to appreciate the issue: "In response to the said notice the dealer submitted reply in writing dated 14/09/2016 wherein stated that "with reference to your notice no.294 dated....
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..... ..................................................................................... Sri Jha submitted that the Superintendent of Taxes, Charge-VIII, Agartala has imposed penalty U/S 53(3) of the TVAT Act, 2004 for non-submission of statement of audited accounts as required U/S 53(1) and 53(2) of the TVAT Act,2004. He further submitted that the report of audited accounts for the years under assessment were prepared within the time as prescribed in the TVAT Act,2004 but due to some internal problem the report could not be submitted in due time and were submitted during hearing of assessment cases. He also submitted to waive penalty as revenue was not affected for such non-submission......................" [31] There is, therefore, no doubt that the assessee did not submit the audit report in terms of Section 53(1) and (2) of the TVAT Act within the time prescribed under the said Section. The findings of the assessing officer as well as the Revisional Authority, as quoted above, are not disputed by the petitioner. Evidently, the assessment order dated 29.09.2016 imposing mandatory penalty equal to 0.1% of the turnover of the company of the assessee was imposed on the assessee....