Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2023 (6) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (6) TMI 233 - HC - VAT and Sales TaxPenalty under Section 76(9) of the RVAT Act - Contrary views for same offence - in the case of the petitioner against whom the demand has been restored while in case of the driver, the appeal filed by the Department has been dismissed for the same offence - production of VAT 47, an afterthought - HELD THAT:- It is undisputed that for the same offence, the penalty imposed upon the driver under Section 76(9) of the RVAT Act has been set aside. Further, as per settled position of law, penalty is not to be applied automatically in each case. To invoke penal provision, the Revenue has to necessarily conduct investigation, afford opportunity of defence/hearing to the assessee and inspect/analyse the documents. The same are sine qua non for imposition of penalty. Imposition of penalty can never be said to be automatic or per se. The foundational facts and premises for the imposition of such penalty and for upholding such penalty have to be established by the Revenue and the burden of the same also lies upon the Revenue. In the case in hand, the learned Tax Board had erroneously reached the conclusion that the production of VAT 47 subsequently was merely an afterthought as the VAT 47 was produced the same day and the reference of the particular VAT 47 was also reflected in the invoice dated 29.08.2012, which was produced on the spot of inspection. The imposition of penalty would have been valid if the declaration forms later produced were found to be false or fabricated but since that is not the case, the penalty was wrongly imposed by the Assessing Officer and wrongly upheld by the learned Tax Board. The lis in question is also squarely covered by the judgment of Apex Court in case of D.P. Metals [2001 (10) TMI 881 - SUPREME COURT], where it was held that The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the Legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes article 19, courts would naturally be circumspect and cautious" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in section 78(5) of the Act. The question of law framed hereinabove is answered in favour of the petitioner-assessee and against the respondent-revenue - Revision allowed.
|