TaxTMI 
TaxTMI 
2020 (9) TMI 480
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....Central Sales Tax Act, 1956. The petitioner has a branch 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 t....
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....ner in response to the show cause notice issued by the Assessing Authority was not duly considered by the Assessing Office. (c) The Assessing Officer did not consider the fact that the Revision Petitioner never defaulted in payment of tax. (iv)His petition filed 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....
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....esulting in loss of revenue of the State for which the assessing authority rightly imposed penalty on the Revision petitioner in exercise of its statutory power. It is argued by Mr. Nandi that order dated 28.02.2017 passed by the Revisional Authority in Rev. Case No.18 of 2017, therefore, does not call for any 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....
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....tion ; or (b) fails to furnish any return by the prescribed date as required under sub-section (2) of section 24; or (c) being required to furnish revised return, fails to furnish the revised return by the date prescribed under sub-section (3) of section 24; or (d) having paid the tax payable according to a return in time, fails to furnish along with the return proof of payment made in accordance with sub-section (4) of section 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 (....
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....he dealer, in order to evade or avoid payment of tax - (a) has failed to furnish without reasonable cause, returns in respect of any period by the prescribed date; or (b) has furnished incomplete and incorrect returns for any period; or (c) has availed himself of tax credit to which he is not entitled to; or (d) has followed such method of accounting which does not enable the Commissioner to assess the tax due from him, he shall, after giving the dealer reasonable opportunity of being heard, direct him to pay, in addition to tax and interest payable by 34 him, 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)....
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....13] In order to decide the case from the right perspective, it would be appropriate to make a reference to the decision of the Apex Court in A.V. Fernandez vs. The State of Kerala reported in AIR 1957 SC 657 wherein the Apex Court vide para 29 of the Judgment laid down the law with regard to the interpretation of taxing statutes. The Apex Court has held as follows: "29.....It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions 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 ....
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............................................................................................................................. .................................................................................... (1) No assessment under Sections 31 and 32 shall be made after expiry of five years from the end of the tax period to which the assessment relates. [20] Apparently the assessment order dated 29.09.2016 for the tax period from 2011-12 to 2014-15 was made after issuing notice dated 31.08.2016 to the assessee. The tax period of 2011-12 ended on 31st March, 2012 for which the assessment order was made on 29.09.2016 within the period of limitation provided under Section 33 of the TVAT Act and obviously, therefore, the assessment 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 affordin....
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.... of his company exceeds forty lacs rupees and obtain a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particular as may be prescribed. [27] Sub-section(2) of Section 53 provides that the dealer shall furnish true copy of the report obtained by him under sub-section (1) to the Commissioner of Taxes by the end of the month after expiry of the period of six months during which the audit as under sub-section(1) would have been completed. [28] Sub-section (3) of Section 53 provides that where the dealer fails to get his accounts audited and furnish the audit report within time as under sub-section (2), the Commissioner of Taxes shall, after giving the dealer, reasonable opportunity of hearing, impose on him, in 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 th....
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....ined annual accounts to our tax consultant who is looking over Sales Tax matter in Tripura. Under the circumstance, we apologize and hereby request you to kindly consider the penalty for non-submission of the audited accounts for the branches of the particular state. We have no intention to evade any tax or evade any statutory obligation. We would like to inform you that we had filed monthly return as well as tax payment within due time." [30] Further, the order dated 28.02.2017 of the Revisional Authority (Commissioner of Taxes) runs as follows: "Sri Ajit Kr. Jha, the petitioner is present. Sri A.Barman, Superintendent of Taxes, H.Q is also present and presented the case records. ........................................................................................................................ ..................................................................................... 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 th....
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.... (Assessing Authority), Charge-VIII, Agartala did not accept the return (s) of turnover filed by the Petitioner at the time of assessment and assessed tax vide his Order of Assessment dated 29.09.2016 to his best of judgment violating the law prescribed under the TVAT Act, 2004 and Rules made thereunder and giving no natural justice. In the said Order of Assessment dated 29.09.2016, the Superintendent of Taxes (Assessing Authority) not only disallowed the claim of the Petitioner's return(s) in making transactions by From 'F' but also determined the Turnover in short(TOD) ex-parte without serving notice following the mandate of the Act levying tax, interest and penalty upon the Petitioner under Section 31(1), 25(4) & 53(3) of TVAT Act,2004 for delay in submission of return(s) though statutory penal interest was deposited against such delay in submission of return(s) and also imposed penalty @0.1% under Section 53(3) of TVAT Act, 2004 for non submission of Audited Balance Sheet of the Company in due time. It is to be noted that prior to the Notice of Assessment, no notice was issued by the Superintendent of Taxes(Assessing Authority), Charge-VIII under Section 27 of TVAT Act,2004 for....