TMI Blog2010 (12) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon payment of late fee under the amended provision of Section 32(2) of the Act. Before amendment of the Sub-section (2) by Act-I of 2008. such a dealer could furnish return upon payment penalty and prior to that no such scope was available. The impugned amendment has introduced late fee in place of penalty which is entirely optional to such a dealer who has failed to furnish return within prescribed period. The dealer is under no compulsion or obligation to furnish return upon payment of 'late fee'. A dealer is still free to choose not to file return after the prescribed period upon payment of 'late fee' and to suffer penal consequences either under Section 45(2) or under Section 46(1) or under Section 46(2) of the Act. There can not be any room of doubt that the amended Sub-section (2) of Section 32 of the Act affords a benefit rather special beneficial right to the dealer to submit return upon payment of 'late fee' even after the prescribed period - Payment of 'late fee' as introduced by the Act I of 2008 can not be a characterized as Tax as choice is left with the dealer concerned to be attractable by the levy. Needless to mention a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 266 of 2008. 2. In this application the Writ Petitioners have questioned the constitutional validity of the provisions for imposition of 'late fee' for filing of returns as contained in Sub-section (2) of Section 32 of the West Bengal Value Added Tax Act, 2003. (hereinafter referred to VAT in short) 3. The facts leading to this application are stated below, in short - The State Legislature by the West Bengal Finance Act, 2007 amended the provisions of Section 32(2) of the VAT with effect from April 1, 2007 affording opportunity to the dealers who failed to submit return within the prescribed time to furnish return upon payment of 'penalty' as prescribed. Further amendment was made by the West Bengal Finance Act, 2008 (Act 1 of 2008) to Section 32(2) providing payment of 'late fee' in place of 'penalty' with retrospective effect from April 1, 2007, i.e., the date when the first amendment of 2007 came into operation. The writ Petitioners filed three (3) applications before the learned Tribunal challenging the constitutional validity of earlier amendment of Section 32(2) of the VAT Act. While the matter was pending, the second amendment was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent contended that by introducing 'late fee' in furnishing return under Section 32(2) of the VAT Act beyond the due date, a dealer is practically benefited and/or saved from any penal consequences provided in Section 45(2)(a) or Section 46(2)(a) of the Act. It is contended by Mr. Basu that if a dealer submits return after due date with 'late fee' and pays all tax and interest, he can not be subjected to provisional assessment under Section 45 and for regular assessment under Section 46. The impugned provision of the act in question came into force on and from 1.4.2007 with retrospective effect. So the dealers can not be said to be prejudiced in as much as if they do not want to file return which was due on 1.4.2007 to 31.3.2008 with the 'late fee' then the penal consequences only be attracted under Section 45(2)(a). He contended that the question of imposition of penalty does not arise if the dealers pay 'late fee'. The introduction of 'late fee' provides a special beneficial right to the dealers to avoid the hazard of paying penalty and interest. By paying 'late fee' they are given opportunity to regularise filling of return w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act or every other dealer, if so, required by the Commissioner by a notice served in the prescribed manner, shall furnish such returns by such dates and to such authority, as may be prescribed. Section 32(2) - Every dealer required by Sub-section (1) to furnish a return shall be liable to pay such late fee not exceeding rupees two thousand for each month or part thereof of delay in furnishing return, as may be prescribed, and pay, before furnishing such return the full amount of net tax, interest and late fee, if any, payable according to such return in the manner as provided in Section 31 and shall furnish along with such return, a receipt from the appropriate Government Treasury referred to in that section showing the payment of such amount. Provided that where a dealer required by Sub-section (1) to furnish return for any return period is unable to make payment of the full amount of net tax or interest, or late fee referred to in this Sub-section, payable according to such return, such dealer shall furnish the return without payment of the full amount of such tax or interest or late fee payable according to such return along with an application adducing reasons to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler shall pay by way of penalty, in addition to the amount of tax to assessed, a sum not exceeding fifty per centum of the amount so assessed. 8. We have considered the contention and rival contention of the learned Counsels for both the parties. The relevant provisions set out above altogether makes it abundantly clear that under Section 32(2) of the Vat Act, a dealer is under legal obligation to furnish return within the prescribed period. In case of failure to do so, he may or may not opt for filing the return together with the total Net Tax and interest upon payment of late fee under the amended provision of Section 32(2) of the Act. Before amendment of the Sub-section (2) by Act-I of 2008. such a dealer could furnish return upon payment penalty and prior to that no such scope was available. The impugned amendment has introduced late fee in place of penalty which is entirely optional to such a dealer who has failed to furnish return within prescribed period. The dealer is under no compulsion or obligation to furnish return upon payment of 'late fee'. A dealer is still free to choose not to file return after the prescribed period upon payment of 'late fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax' as Mr. Ghosh wanted to project. In our considered opinion, the learned Tribunal is absolutely right on this point. 13. Again, the proposition of Mr. Ghosh that 'late fee' is amounting to double jeopardy is not acceptable for the reason as discussed above. The right envisaged in Article 20 or 21 of the Constitution of India can not possibly be stretched to that extent. This apart, if the scheme of the VAT Act is understood clearly, one can easily find that a dealer who fails to file return in terms of Section 32(1) of the Act, is not required to pay 'late fee' as well as penalty for non filing of return in time. 14. So, in our view, the learned Tribunal has not at all erred in coming to the conclusion that there is no basis for raising the plea of double jeopardy by the Petitioners. 15. Coining to the point as to competency of the State Legislature to impose fee in any matter in the List-II of the schedule VII, suffice it to state that the Entry N0.-66 empowers the State Legislature to levy fees in most general terms in all the matters. If the conditions of a 'fee' are satisfied, the nomenclature given by the legislature is immaterial. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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