TaxTMI 
TaxTMI 
2025 (8) TMI 73
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....ed by the J&K Sales Tax (Appellate) Tribunal are perverse keeping in view the law laid down by the Apex Court holding/ observing that the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law; and (b) Whether invoking of section 67 (1) (o) of the J&K VAT Act, 2005 by the Assessing Authority instead of invoking section 17 (1) (o) of the J&K GST Act, 1962 renders the order passed by the Assessing Authority as well as proceedings vitiated, more particularly section 17 (1) (o) of the J&K GST Act, 1962 is pari-materia to section 69 (1) (o) of the J&K Vat Act, 2005, in view of the law laid down by the Supreme Court of India in case reported as in Ram Sunder Ram v. Union of India (2007) 13 SCC 255." 02. Before we advert to the questions of law sought to be referred by the Petitioners herein to the High Court, we deem it appropriate to give a brief factual background leading to the filing of this Petition. 03. Vide Order dated 16th of December, 2016 passed by the Assessing Authority, Commercial Taxe....
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....ny, deposited by the Respondent-Company. 08. Feeling dissatisfied with the Judgment dated 17th of March, 2022 passed by the Tribunal, the Petitioners herein moved an application before the Tribunal under Section 12-D of the GST Act seeking reference of questions of law purportedly arising out of the proceedings of appeal before the Tribunal. Later, during the pendency of the proceedings, on the concession made by the Petitioners herein, the proceedings were treated as proceedings under Section 75 of the Act of 2005. 09. Be that as it may, the matter was considered by the Tribunal at some length and, after hearing both the sides, the Tribunal came to the conclusion that the questions posed by the Petitioners herein for reference were not the questions arising out of the appeal and were, therefore, not referable to the High Court for determination. This is how the instant Petition has been moved by the Petitioners in terms of second proviso to Section 12-D of the GST Act. 10. Having heard learned Counsel for the parties and perused the material on record, we are of the considered opinion that the questions of law framed by the Petitioners herein for making reference to the H....
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....Tribunal, power to withdraw and transfer cases, recovery of fines, taxes or penalties, etc., etc. The procedural provisions of the GST Act, of which reference is made in Section 6 of the Act of 2000, have been applied to the proceedings under the Act of 2000 mutatis mutandis and, therefore, shall be deemed to be part of the Act of 2000 by reference. The provisions of Section 69 (1) (o) of the Act of 2005 and the provisions of Section 17 (1) (o) of the GST Act have, thus, not been made part of the Act of 2000. In short, the only provisions which are adopted mutatis mutandis for the proceedings under the Act of 2000, in terms of Section 6 of the Act of 2000, are either those which pertain to the right of appeal and revision and the forums for hearing such appeals and revisions or to the provisions providing for recovery and refund of fines, taxes and penalties imposable under the Act of 2000. Since, no penalty is imposable under the Act of 2000 for bypassing the Commercial Taxes Check Post simplicitor, as such, Section 6 of the Act of 2000 cannot be interpreted to create a provision of penalty which otherwise does not exist in the Act of 2000. 14. When a Statute levies tax, intere....
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....der the Central Act. Enhancement it of assessment is in the process of assessment. It is a procedural power. The liability to tax is created by the statute. Therefore, when the power to assess is attracted a fortiori enhancement is within the power. 28. For the foregoing reasons we are of opinion that the provision in the state Act imposing penalty for non-payment of income-tax within the prescribed time is not attracted to impose penalty on dealers under the Central Act in respect of tax and penalty payable under the Central Act. There is no lack of sanction for payment of tax. Any dealer who would not comply with the provisions for payment of tax, would be subjected to recovery proceedings under the public Demands Recovery Act. A penalty is a statutory liability. The Central Act contains specific provisions for penalty. Those are the only provisions for penalty available against the dealers under the Central Act. Each State Sales Tax Act contains provisions for penalties. These provisions in some cases are also for failure to submit return or failure to register. It is rightly said that those provisions cannot apply to dealers under the Central Act because the Central Ac....