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2021 (1) TMI 1101 - HC - VAT and Sales TaxLevy of VAT - goods provided by a DTH provider to its customer - petitioner contends that for providing such equipments no charge is collected from the subscriber and petitioner continues to be the owner of the goods and thus the State authorities cannot collect value added tax on such equipments - HELD THAT:- The present petition are squarely covered by the decision of Division Bench of this Court in case of BHARTI TELEMEDIA LTD. VERSUS STATE OF TRIPURA AND OTHERS, TATA SKY LTD. VERSUS STATE OF TRIPURA AND OTHERS [2015 (11) TMI 46 - TRIPURA HIGH COURT]. The question involved in the said petition was with respect to inviting value added tax on the goods provided by a DTH provider to its customer so that the customer could enjoy such service. It is also a case where concededly there was no sale of goods - Nevertheless the High Court referring to the decision of Supreme Court in case of BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT] invoked the principle of transfer of right to use the goods. There are no hesitation in confirming the revisional order insofar as it pertains to the liability of the petitioner to pay tax with interest. However, in relation to penalty we find that the authorities have committed a serious error. Firstly, contrary to what the revisional authority has recorded in the impugned order, sufficient opportunity of hearing was not granted to the petitioner before imposing penalty by the Assessing Officer - The Assessing Officer, therefore, issued an oral notice to the accountant who was present, thereafter kept the further hearing of the assessments and penalty proceedings and recently orally instituted penalty proceedings in the afternoon on the same day, heard the accountant on penalty as well and concluded that the assessee was deliberately in default. Penalty - HELD THAT:- Such order of penalty cannot be upheld. Firstly, there was gross violation of principles of natural justice. Even if the accountant did not insist on a written notice for penalty, it is questionable whether the Assessing Officer could dispense with the same. More importantly, the penalty proceedings could not have been completed in a summary fashion after giving time from morning to afternoon to the accountant of the company to make his submissions. The penalty proceedings being quasi criminal in nature, strict requirement of procedural adherence is always insisted upon. The orders passed by the Assessing Officer and revisional authority confirming penalty against the petitioner are set aside - Petition allowed in part.
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