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2019 (6) TMI 1345 - HC - VAT and Sales TaxConstitutional validity of sub-rule (5) of Rule 41 of the Assam Value Added Tax Rules, 2005 - validity of circulars dated 08.09.2011, 18.11.2011, 14.03.2012, 14.03.2012 and 18.05.2012 - power vested with the Commissioner to issue circulars - HELD THAT:- Through the proviso, the Commissioner is empowered to direct the relevant information in the electronic format to be uploaded. Such proviso is a part of the Rule which is framed by the Government by which it provides for the Commissioner to issue appropriate directions. The same cannot be considered as sub-delegation of the power. Hence, the contention in that regard cannot be accepted and the decisions rendered would not be relevant for the said purpose. Levy of penalty - failure to upload the documents in electronic form - documents required to accompany the goods - Held that:- Though sub-rule (5) to Rule 41 provides for uploading the documents in electronic format, the non-compliance of the same does not indicate any consequence nor the circulars issued in that regard specifies any consequence for non compliance. The circular only indicates the ease with which the checking could be completed at the check posts. In that background, when penalty is to be imposed for non-compliance of the requirement of production of the documents provided for in Section 75(3) and Rule 41(9) and when presumption of evasion of taxes is rebuttable by production of the documents, the Authorities were required to apply their mind to this aspect of the matter. The documents as referred to by the petitioners in their reply dated 7.1.2014 were to be examined to find out as to whether the said documents were genuine and whether the documents were in existence as on the date of movement of the goods. In that regard, if the authorities were satisfied that the documents in the physical form was available as on the date of the movement of the goods, in such event a consideration was necessary to be made as to whether penalty was leviable only because the uploading in the electronic format was not done. In the instant case, no such exercise has been done, but the penalty has been imposed only on the observation that on-line declaration had not been made. Insofar as the tax levied at ₹ 50,475/-, in any event, the same was required to be paid and the petitioner having paid the same, has secured the release of the goods through interim order passed by this Court, which has only stayed the recovery of penalty. In that circumstance, it would be appropriate to set aside the orders dated 22.05.2014 and 30.05.2014 and remit the matter to the Superintendent of Taxes to take a decision at the outset and, thereafter, to enable the Inspector of Taxes to take a decision thereafter - petition allowed by way of remand.
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