9911796707
TMI Blog2010 (5) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... of new RC as partners of another petitioner-firm by the same name of M/s. Brahm Sarup and Sons (hereinafter to be referred as, "the new firm"). This firm was again allotted RC on November 24, 2004 by the Assessing Authority, UT Chandigarh under the PGST and CST Acts. In the wake of repealing of the PGST Act and enforcement of the Punjab Value Added Tax Act, 2005 (hereinafter to be referred as, "the VAT Act"), both the firms with the same name and nomenclature were allotted separate TIN numbers operating in the same premises. As soon as, Abhey Kumar, partner of the old firm, came to know about the existence of new firm with new RC, he filed a complaint, inter alia, pleading that the Department has wrongly granted the RC to the new firm. The matter was processed and on examining the record, it revealed that the order dated November 24, 2004 of the Assessing Authority granting the RC to the new firm suffers from illegality as the two RCs for the same name, place and business could not be granted. Therefore, the Revisional Authority issued a detailed notice, vide memo No. 474 dated September 7, 2007 to the partners of the new firm under section 65 of the VAT Act, for affording ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner-new firm has contended with some amount of vehemence that the Revisional Authority was not competent to cancel the RC in exercise of its powers under section 65 of the VAT Act. The argument further proceeds that even there was no cogent material before the authorities for cancellation of RC of the new firm. Thus, he prayed for acceptance of the present revision petition. In support of his contention, the learned counsel for the petitioner has placed reliance on the judgments of the honourable apex court in cases Indian Aluminium Cables Ltd. v. Excise and Taxation Officer [1977] 39 STC 19, Madan Lal Arora v. Excise and Taxation Officer, Amritsar [1961] 12 STC 387; AIR 1961 SC 1565, this court in cases Banarasi Dass Talwar v. Deputy Excise and Taxation Commissioner, Jullundur Division, Jullundur [1983] 53 STC 150, Excise and Taxation Officer, Assessing Authority, Ludhiana v. Hardit Singh Bhagat Singh [1986] 63 STC 152 and the Gauhati High Court in the case of Rajendra Singh v. Superintendent of Taxes [1990] 79 STC 10. Hailing the impugned order, on the contrary, the learned counsel for the respondents, State and old firm, have urged that since the partners of the new fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for initiating proceedings under section 11-A of the Act". Sequelly, in Madan Lal Arora's case [1961] 12 STC 387; AIR 1961 SC 1565, it was ruled by the honourable Supreme Court that "the power to make assessment to the best of his judgment can, however, be exercised only within the three years mentioned therein and not after these three years had gone by." Likewise, in Rajendra Singh's case [1990] 79 STC 10, the Gauhati High Court has observed that "the consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interest of the Revenue, must be based on materials available on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting roving enquiries in matters or orders which are already concluded and when exercise of statutory power is dependent upon the existence of certain objective facts, the authority, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued notice to the new firm, gave full opportunity of hearing and then passed a detailed order, followed by reasons, and cancelled its RC. Therefore, a combined reading of these provisions would reveal that the Revisional Authority-cum-Commissioner was competent to and rightly cancelled the RC of the new firm in this relevant behalf. Now adverting to the second contention of the learned counsel that there was no material to cancel the RC of new firm but the Revisional Authority has wrongly cancelled the same by a belated and illegal order, this argument is not only devoid of merit but misplaced as well. Sequelly, the honourable apex court in Indian Aluminium Cables Ltd. case [1977] 39 STC 19 held that "under the Punjab General Sales Tax Act, 1948, mere statutory liability of a dealer to file the return or to pay the tax has not the effect of commencement of any proceeding under the Act. If the dealer has filed the return, the proceeding under the Act can be said to commence and the assessment under section 11(1) can be made at any time. The Legislature did not fix any period of limitation for taking up of the steps or the passing of the assessment order under any of sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Again, it is not a matter of dispute in the present case that the partners of the new firm did not supply the complete particulars and are guilty of concealment of material facts. The Revisional Authority has recorded a finding of fact that (i) the statutory application form is incomplete with regard to disclosure of the information regarding interest of the proprietor/ partner in any other business as per column No. 4 of the application; (ii) that Rakesh Mahindra, partner of the new firm, had concealed the facts of his having interest in another existing old firm operating under the same name and style of M/s. Brahm Sarup and Sons; (iii) that while obtaining the RC for the new firm, the partner camouflaged the information with an intention to hide the tax liability of the old firm amounting to Rs. 1.85 crore approximately, which was operating in the same premises since 1952; and (iv) Abhey Kumar was also a partner of the old firm of the same name, which was already in existence and running its business at the same site since 1952 under the old RC. Had these informations been correctly mentioned in form S.T. 1 and had not been concealed by the new firm the same would have come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
