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TMI Blog2007 (9) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... ness on June 5, 2007 and/or on March 20, 2007 at her declared place of business. The application registered as RN-192 of 2007 is directed against the seizure of goods on June 15, 2007 under section 76(1) of the West Bengal Value Added Tax Act, 2003 of 300 pieces of hand pumps and 555 bundles of hand pump parts carried by the vehicle No. WB 23A1667 from the possession of its driver Md. Azad Khan with tax invoice issued by Ankita Sales Corporation for "contravention of the provision of section 73 (and section 81) of the WB VAT Act, 2003 as well as imposition of penalty at 30 per cent under section 77 of the WB VAT Act, 2003" under order dated June 19, 2007 on Rs. 1,80,000 for hand pumps and Rs. 2,77,500 for parts, imposed on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carrying on business from residents. She prays for quashing the order of cancellation of the registration certificate. The respondent No. 1, the Sales Tax Officers, Durgapur Range and of Bally Charge contested both the applications by filing separate affidavit-inopposition supporting the impugned act of seizure, imposition of penalty and cancellation of the registration certificate on identical statement. The contesting respondent claimed that as per enquiry report dated June 5, 2007, the applicant had no place of business at the declared place of business. The applicant filed one defective return on June 26, 2007 for quarter ending March, 2007 showing sales of Rs. 1,14,218 only and paid tax of Rs. 143 only. She never imported any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entations which have subsequently being found false or incorrect by such appropriate authority. Sri Ajoy Krishna Sarkar, Sales Tax Officer, Bally Charge, in his affidavit-in-opposition in the RNCase No. 202 of 2007 on oath stated, "no enquiry was made by the registering authority as regards existence of business of the petitioner before granting her certificate of registration. . ." He formed his opinion on the basis of an enquiry report of an Assistant Sales Tax Officer of Bally charge dated June 5, 2007 annexed to the affidavit-in-opposition. This report is as follows: "as per order under reference, I pay visit along with A. Das and B. Sarkar, A. S. T. O/B. Y to the above noted dealer's business premises to draw a report regarding exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the WB VAT Act, 2003, covers the clauses (a) and (b) of the sub-section (1) of section 29 of the WB VAT Act, 2003. There are no Rules as regards the provision of clause (c) of sub-section (1) of the section 29 of the WB VAT Act, 2003. So, in rules, the registration certificate could be cancelled by the issuing officer or the officer above the rank of the issuing officer. The Sales Tax Officer could not cancel the registration certificate issued by the Assistant Commissioner particularly on the ground that there had been no enquiry by the Assistant Commissioner as regards issue of the registration certificate. The Sales Tax Officer, Mr. Sarkar, formed his opinion because as per the enquiry report, the registration certificate holder: (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intenance of books of account does not arise. This could be argued if the registration certificate was cancelled on the ground as provided in clause (a) ceased to exist at the place of business of the sub-section (1) of the section 29. The learned State Representative Mr. Nath contended that "carrying on business" includes maintenance of books of account but no books of account were found at the declared place of business. He, citing the decision of the single Bench of the honourable Calcutta High Court in the case of Saha Stores v. Commercial Tax Office reported in [1959] 10 STC 311 (Cal), supported the act of cancellation of the registration certificate. In this case cited by Mr. Nath, the honourable court held inter alia "a registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the certificate of registration was liable to be cancelled on the ground as provided in section 29(1)(c) of the WB VAT Act, 2003 is misconceived and the impugned order of cancellation of the registration certificate is liable to be set aside. The seizure of hand pumps and parts and also imposition of penalty were made on the ground of non-existence of the consignor, i.e., non-existence of the applicant at the declared place of business when the ground of obtaining registration certificate on false representation failed, the ground of seizure and consequently imposition of penalty also failed. Both the applications therefore succeed. The seized goods except 36 bundles each containing 25 kg PVC suction pipe valued at Rs. 54,000 should be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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