TaxTMI 
TaxTMI 
2024 (5) TMI 1144
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....use, Raj Tilak Road, Jammu on 14.01.2006 which resulted in purported detection of the fact by the said Inspection Officer that there were 35 improper invoices/estimates which were pointer to the fact that the respondent was not issuing sale invoices in respect of the sale transactions being conducted by it. 04. This development led to issuance of a notice in terms of order dated 30.01.2006 by the Commercial Tax Officer to the respondent resulting in imposition of a penalty of an amount of Rs. 3,50,000/- upon the respondent. 05. Against this order of imposition of penalty by the Commercial Tax Officer against it, the respondent preferred a statutory appeal before the appellate authority of Deputy Commissioner, Commercial Taxes (Appeals), Jammu which came to be dismissed vide an order dated 29.10.2006 thereby maintaining the imposition and demand of payment of penalty of Rs. 3,50,000/- against the respondent. 06. Against this appellate authority order, the respondent approached SSTAT with an appeal on file no. 298/ST/T/J on 10.01.2007 thereby posing challenge to the original order of imposition of penalty confirmed by the appellate authority order. 07. The SSTAT in terms ....
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....lt specified in clause(k) a penalty equal to ten times of the tax payable on each such default or rupees ten thousand whichever is higher; (xii) .......... (xiii) .......... (xiv) .......... (xv) " 11. In its judgment dated 23.03.2007, the SSTAT came to hold that before imposition of penalty as envisaged under section 69(1)(k), the appropriate authority is required to determine the tax payable with respect to the transaction of sale with respect to which a person has failed to issue tax invoice or retail invoice or issues a false tax invoice or retail invoice or receives and uses a tax invoice, knowing it to be false. As understood and held by SSTAT, it is only upon adjudging the tax liability at the first instance that the penalty imposition and assessment can come into picture as to whether the penalty is to be levied ten times of the tax payable on each such default or rupees ten thousand whichever being higher. 12. The SSTAT found the original order of the appropriate authority i.e. Commercial Tax Officer to be defective in its nature of having imposed the penalty of Rs. 3,50,000/- by reference to 35 questionable/improper invoices/estim....
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....ble under the Act and includes every person in respect of whom any proceedings under the Act have been taken. • Section 2 (XI) defines "Dealer" means to any person who carries on (whether regularly or otherwise) the business of selling, purchasing, supplying or distributing the goods, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or indirectly, for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes ..................................... • Section 2 (XXVIII) defines "Sale" to be with all its grammatical variations and cognate expressions meaning every transfer of the property in goods, other than by way of mortgage, hypothecation, charge or pledge, by one person to another in the course of trade or business for cash, deferred payment or other valuable consideration and includes ............................... • Section 2 (XXXIII) defines "Tax" meaning tax payable under the Act. • Section 2 (XXXIV) defines "Tax Invoice" an invoice in such form and containing such particulars as may be prescribed. ....
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....he tax payable on sale of goods by a dealer liable to pay tax under section 12 which shall be on his taxable turnover of sales. It is in this context that the tax invoice provided under rule 63 by reference to section 2 (XXXIV) which begs for an understanding to answer the reference. 19. The tax invoice can be a VAT invoice or a retail invoice. In the present case it is the retail invoices which are in reference. This retail invoice is mandated to be issued under rule 63 by a VAT dealer or a casual trader when making sale of goods in the State to non-VAT dealers, unregistered dealers and consumer. In the present case the invoices in reference are the ones relatable to sale of goods to consumers. Now, once a retail invoice deals with a particular sale of good transaction, as such, Section 69 has in its legislative intent the default on the part of the dealer under clause (k) sub-section 1 to be a tax invoice specific. 20. Tax invoice means a particular sale transaction made by the VAT dealer or a casual trader to a consumer. It is a tax invoice which generates default and if that default is proved then it invites penalty, against a defaulting person, equal to ten times of the ....