Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2014 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (4) TMI 732 - HC - VAT and Sales TaxRate of royalty - Royalty on consumption/removal of minerals u/s 9 of the Mines and Minerals (Development and Regulation) Act, 1957 - Proper Notice - Quashment of Demand Notice - Vires of Rule 64D of the Mineral Concession Rules, 1960 Held that:- When it was found that the sale price as disclosed by the assessee and the data supplied by the Department of Mines, Chaibasa were not in conformity with each other and the assessee had intentionally paid less VAT by showing lesser sale price, AO proceeded to assess the value of goods and consequently tax and penalty u/s 35(7) and 40(2) respectively - A separate notice under u/ 35(7) was not required to be issued as it was in continuation to the proceeding under the regular assessment proceeding u/s 35 (5) of the Act. Issuance of Fresh Notice - Sufficiency of Opportunity of hearing Judgment in J.K. Steel Ltd. v. Union of India [1968 (10) TMI 45 - SUPREME COURT OF INDIA] followed - If the exercise of power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question - Incorrect mentioning of the provision of law or even if it is not indicated in the notice issued to the assessee that AO has proceeded u/s 35(7), it would not prejudice the assessee as from the materials on record it is evident that AO has recorded reasons for proceeding against the assessee and thus, the assessee knew as to the nature of the proceeding and the demand raised by AO - From the proceeding before the Assessing Officer, it is clear that sufficient opportunity was given to Assessee - The petitioner was heard by AO - There was not required in law for issuing fresh notices u/s 35(7) and 40(2) to the assessee and therefore, held that impugned order dated 11.02.2013 has not been passed in violation of the principles of natural justice. Availability of remedy of Appeal/Review/ Revision Held that:- Judgment in Asstt. Collector of Central Excise v. Dunlop India Ltd. 1984 (11) TMI 63 - SUPREME Court] followed - the Hon'ble Supreme Court has observed that Article 226 is not meant to short circuit or circumvent statutory procedures Since JVAT Act, 2005 provides an effective remedy of appeal, these writ petitions cannot be entertained by this Court and accordingly, the writ petitions are dismissed No opinion is expressed on the merits of the case - Decided against Assessee.
|