TMI Blog2015 (10) TMI 2604X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2005 which talks about ‘registration of dealer’. Rule 3(3) of the Rule 2005 stipulates that an application for registration shall be filed before the Circle In-charge within whose jurisdiction the place of business of the dealer is situated, but on the other hand, Rule 3(9)(a) provides that such dealers who have got more places of business than one situated in different circles of Bihar shall apply before the Commissioner or before the officer specially authorized in this behalf - the dealer(petitioner) was not required to make application for registration before the Circle In-charge of Commercial Tax, Kishanganj, rather he was required to make application before the Commissioner of Commercial Taxes for the purpose of amendment of the certificate of registration. Once the petitioner made application for amendment of certificate under Section 20 of the Act furnishing the information required under Section 23 of the Act, it could not be treated as a dealer evading registration. The order impugned dated 23.01.2015, passed by the Assistant Commissioner of Commercial Taxes, Kishanganj Circle, Kishanganj (respondent no. 2) is without jurisdiction as well as based on wrong n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pened its Kishanganj Retail Store on 04.12.2014 and informed the Circle In-charge of Patliputra Circle regarding the said additional place of business for the purpose of amendment of the certificate of registration under the Act. On 06.12.2014 officers of Kishanganj Commercial Taxes Circle made inspection of the business premises of Kishanganj Branch of M/S. V-Mart Retail Limited (hereinafter referred to as the dealer). It is contended by the petitioner that during the course of inspection the person concerned of the dealer informed the inspecting officers that the dealer is already registered in Patliputra Circle of Commercial Taxes with effect from 01.04.2011 and this is one of the additional place of business of the dealer and the Circle In-charge of the Patliputra Circle has already been informed, in respect of the said additional place of business. They were also informed that the original certificate of registration has been submitted to the Office of the Commissioner, Commercial Taxes, for the purpose of amendment in the Registration Certificate. In spite of the said fact the petitioner received a notice issued vide Process No. 1094 dated 30.12.2014, by which there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, sub-section 1 of Section 28 of the Act is not applicable against the petitioner and further the respondent authority who has passed order impugned dated 23.01.2015 has no jurisdiction to pass such order in terms of Section 28(1) of the Act for the reason that the dealer is already registered in Patliputra Circle, Commercial Taxes, Bihar, with effect from 01.04.2011 under sub-rule(9) (a) of Rule 3 of the Rules 2005. Learned counsel for the respondents, on the other hand, submits that the petitioner never informed the inspecting officers that it being a registered dealer under the Act. He also submits that Kishanganj Branch of the petitioner was indeed an unregistered dealer till the date i.e., 05.02.2015 of the amended certificate of registration. The learned counsel for the respondents lastly submits that alternative remedy of appeal against the order under challenged, is also available to the petitioner, thus the writ application ought not to be entertained. Now the points which arise for consideration before this Court are: whether Section 28(1) of the Act is applicable against the petitioner, particularly in the background of the fact that the dealer is already re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner or the officer specially authorized in this behalf shall direct the applicant to get himself registered in the circle specified in the direction. (b) The provisions of Sub-Rule (1) to Sub-Rule(8) shall, apply mutatis mutandis to an application for registration under this sub-rule. From the words and expressions used in Section 28(1) of the Act, it appears that for passing any order in terms of that Section, the prescribed authority has to be satisfied that reasonable ground exists to believe that any dealer has been liable to pay tax under this Act, in respect of any period and has willfully failed to apply for grant of certificate of registration or having so applied, failed to furnish any particular or information required for the purposes of Section 19; thereafter, reasonable opportunity of hearing is to be given to such dealers by the prescribed authority before making assessment of tax due. Firstly, we would consider the issue that whether Kishanganj Branch of M/S. V.MART RETAIL LTD. may be treated as a dealer for the purpose of assessment of tax due and imposing penalty in terms of Section 28(1) of the Act. It is evident from the facts noticed above that M/S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all rights and performing all duties or bearing all liabilities under the Act or the Rules made there under. Thus once the petitioner made application for amendment of certificate under Section 20 of the Act furnishing the information required under Section 23 of the Act, it could not be treated as a dealer evading registration. Another fact also required to be noticed here is that M/S V. MART RETAIL LTD., Kishanganj, is an additional place of business, i.e., a Branch of the dealer having its principal office at Ara registered under the Act. The word dealer talks about a person, it may be natural or juristic. If the said branch would have been run by a Commission Agent, Broker, Factor, Mercantile Agent then situation would have been different and they may be treated as a dealer for the purpose of Section 28(1) of the Act but here the retail store at Kishanganj is a branch of the dealer so it was not required to be registered separately under the Act, rather the dealer was required to furnish information under Section 23 for the purpose of amendment of the certificate of registration as envisaged under Section 20 of the Act. Therefore, Section 28(1) is not applicable in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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