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2016 (4) TMI 967 - TRIPURA HIGH COURT

2016 (4) TMI 967 - TRIPURA HIGH COURT - TMI - Re-assessment of returns - Chillers imported outside the country - Commitment of offence in regard to stipulation in contract that chillers had to be purchased from Malaysia - Held that:- an officer of the rank of Commissioner is totally unaware of the provisions of the Sales Tax laws. The State Government has no legal competence to levy tax on goods which are imported from outside the State. It also has no competence to levy tax on goods imported fr .....

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from only within the State. He can buy goods from outside the State and bring them within the State or can import them into the country in accordance with law. If he has not smuggled in the goods, he has not committed any offence.

Whether the assessee had charged 20% tax over and above the contract value - Works Contract - Held that:- the state has failed to produce any evidence in regard to its conclusion that the dealer had charged 20% sales tax over and above the contract value. T .....

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that the assessee had committed an offence by importing chillers from Malaysia. Therefore, this is a fit case where exemplary costs should be imposed. - Petition disposed of - WP (C) No. 112 of 2014 - Dated:- 8-2-2016 - Deepak Gupta, CJ And S. Talapatra, JJ. For the Petitioner : Mr A K Bhowmik, Sr Adv. & Mr. T K Deb, Adv For the Respondent : Mr. D C Nath, Adv JUDGMENT ( Deepak Gupta, CJ. ) The petitioner company is duly registered under the Indian Companies Act. It has business dealings all .....

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ed in the year 2005-2006. Presently, the company is entrusted with the annual maintenance contract of air conditioning etc. in Tripura Airport. 3. Notices were issued to the petitioner for assessment of returns for the year 1998-1999 to 2004-2005. A common order was passed on 30th June 2007 in respect of all the five years and the Assessing Officer found that the assessee had deposited excess amounts in the years 1998-1999, 1999-2000, 2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2004-2005. Thi .....

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e dealer has actually deposited 20% tax charged in the bills relating to works contract or paid lesser amount of tax. Thereafter fresh assessment order was passed and the Assessing Officer held that the assessee had paid excess tax of ₹ 10,900/- for the year 1998-1999, ₹ 70,000/- for the year 1999-2000, ₹ 1,43,012/- for the year 2000-2001, ₹ 5,72,214/- for the year 2001-2002, ₹ 3,03,410/- for the year 2002-2003, ₹ 1,90,143/- for the year 2003-2004 and ₹ .....

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ril, 2012 i.e. almost after four years issuing notice to the assessee as to why the assessment order dated 21.05.2008 for the years 1998-1999 to 2004-2005 should not be cancelled and the matter remanded to the Superintendent of Taxes for re-assessment. 4. The main ground which weighed with the revenue was that on the total contract of ₹ 3,05,11,585.00 the assessee had levied tax of 20% whereas only 4% tax was payable and, therefore, the assessee was liable to deposit this amount in the Sta .....

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ity has not finally decided the points mentioned in paragraph 6 of the impugned order dated 26.03.2012 and for which the writ petitioner had been asked to appear before the Revisional Authority. However, in the present case, as the learned senior counsel appearing for the petitioner strenuously contends that the point in the paragraph 6(v) of the impugned order dated 26.03.2012 was decided wrongly, we direct the Revisional Authority to take into consideration of the decisions of the Apex Court i .....

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ciding Revision Case No. 10/CH-IV/2011 by giving reasons. Since the matter has been pending for consideration period, the Revisional Authority is directed to dispose of the Revision Case No.10/CH-IV/2011 by passing a reasoned order within a period of two months from the date of receipt of the certified copy of the order." Thereafter, the assessee appeared before the Commissioner of Taxes and had filed detailed written submissions and also copies of a large number of judgments of the Gauhati .....

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Even though the arguments had been heard on 17th December, 2012, the appellate authority took more than one year to decide the matter and the order was pronounced only on 31.12.2013. 6. We are constrained to observe that the Commissioner of Taxes has treated the order of this Court with contempt and has totally violated all the directions given in the judgment in W. P(C) No. 232 of 2012 as he has not made reference to any of the judgments relied upon by the assessee and has passed the order mai .....

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zed. Therefore, it is construed that the dealer committed offence by way of importing the goods from Malaysia un-authorisely. 12. Moreover, in the appellate order dated 10.03.2008 in Appeal Case No. 160-166/CHIV/ 2007 the Appellate Authority clearly mentioned that the dealer charged tax on the entire contract value worth of ₹ 3,05,11,685/- which relates to executed works in Airport Terminal building of Agartala Airport and the contract value includes the value of 3(three) nos. of water coo .....

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late Authority without going through details of the agreement schedule of work, tender, payment bill, etc. related to the works. Therefore the relevant agreements, tender, works executed, bills payment etc. are needed to be examined again by a fresh assessment. If it is found that the dealer charged tax on entire contract value of ₹ 3,05,11,685/- (sic) in that case the equal amount of tax charged on 3(three) nos. of Water colled Chiller machines imported from Malaysia in execution of works .....

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excess tax charged should have been realized and forfeited in accordance with the Section 3B of the Tripura Sales Tax Act, 1976." 7. As far as the first finding of the Commissioner of Taxes is concerned that clearly indicates that even an officer of the rank of Commissioner is totally unaware of the provisions of the Sales Tax laws. The State Government has no legal competence to levy tax on goods which are imported from outside the State. It also has no competence to levy tax on goods impo .....

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y goods from only within the State. He can buy goods from outside the State and bring them within the State or can import them into the country in accordance with law. If he has not smuggled in the goods, he has not committed any offence. 8. As far as the second finding is concerned the main issue was whether the assessee had charged 20% tax over and above the contract value of ₹ 3,05,11,585.00. Though the first appellate authority had given some findings in this regard, the Assessing Offi .....

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e has failed to produce any evidence in this regard. 9. On perusal of the contract we find that the following conditions of the work order are very relevant: "(i) Contract value: The total contract value will be ₹ 3,05,11,585.00 (Rupees three crores five lakh eleven thousand five hundred eighty five only). (ii) Taxes and duties : The above amount is inclusive of packing, forwarding, freight, insurance, excise duty, works contract tax and all other taxes & duties F.O.R. Agartala Ai .....

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