TMI Blog2013 (10) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... - Section 5A of Section 43 of the Act specifically provides that in default of the payment of the tax interest or the late fees stated in the computation sheet, it would partake the character of an order of assessment and shall be deemed to be a notice of demand. Rule 54 (7A) of the West Bengal Value Added Tax Rule, 2005 also makes the determination of tax interest or late fees in the computation sheet be deemed to be an order of assessment in default of its payment within a specified date. Audit made under Section 43 and the computation of tax, penalty and late fees shall be deemed to an order of assessment in default of the payment within one month from the date of the service of the report and the computation sheet is amenable to be challenged before the tribunal under Section 5 & 6 of the Taxation Tribunal Act - Decided against assessee. - W. P. No. 24883 (w) of 2013 - - - Dated:- 3-9-2013 - The Hon ble Justice Harish Tandon,JJ. For the Petitioner : Mr. Sudipta Sarkar, Ms. Moshumi Bhatt, Mr. J. Pal, Mr. Partha Basu, Mr. N. Roy For the Respondents : Mr. Abhratosh Majumder, Mr. Soumitra Mukherjee JUDGMENT Harish Tandon, J. A preliminary objection is ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the writ petition is not maintainable because of the specific provision contained under Section 5 6 of the West Bengal Taxation Tribunal Act, 1987 (Taxation Tribunal Act) which excludes the jurisdiction of the High Court to entertain the writ petition. In support of the above contention, reliance is placed upon a judgment of the Supreme Court rendered in case of L. Chandra Kumar vs- Union of India Ors., reported in (1997) 3 SCC 261. The learned Advocate appearing for the respondent submits that Section 43 of the Vat Act empowers the Commissioner to select on random basis or upon information or otherwise, such class or classes of dealer as may be prescribed, for audit of the accounts, registers or documents maintained or kept by such dealer for any year or part thereof not being a period which has ended five years previous to the date of selection. It is further contended that Sub-section 3 of Section 43 permits the petitioner to prepare a report stating the observations and findings relating to the correctness of the returns and the admissibility of various claims of the dealer of the period of audit and shall also compute the quantification of tax interest or late fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handra Kumar (supra) framed the questions required for an answer which would be relevant to quote as under: (1) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323-A or by sub-clause (d) of clause (3) of Article 323-B of the Constitution, to totally exclude the jurisdiction of all courts , except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323-B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution? (2) Whether the Tribunals, constituted either under Article 323-A or under Article 323-B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule? (3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court. We have already emphasized the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain Case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court s writ jurisdiction under Articles 226/227 of the Constitution, before a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relate to a levy, assessment, collection and enforcement of any tax under the specified Act or any matter connected there with or incidentally thereto. Section 43 of the Value Added Tax Act empowers the Commissioner to audit the accounts, registers or documents of a dealer for any year or part thereof not being a period which ended five years previous to the date of selection. Sub-section 3 as already indicated above requires the preparation of the report containing the observation and findings, regarding correctness of the returns, admissibility of various claims of the dealer for which the audit is conducted and the preparation of computation sheet quantifying the tax interest or late fees. Sub-section 5A of the Act says that if the dealer fails to pay the tax interest and late fees stated in the computation sheet within one month of the receipt of such report, it would culminate into an order of assessment and shall be deemed to be notice of demand. There is a distinction between the levy and the assessment, as the levy is wider in its import than the assessment so as to include both the imposition of tax and the assessment as held in case of National Tobacco Company Ltd.,(supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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