TMI Blog2019 (5) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-16 and 2016-17, a total amount of Entry tax not paid by the petitioner was ₹ 16,53,961/- whereas the VAT Act not paid is ₹ 61,186/- - from the aforesaid facts, it is clear that the petitioners certificate of registration has been suspended from 1.6.2016 to 31.3.2017 for non-payment of Entry tax by the petitioner for which the provisions of sub-section (5A) of section 27 of the VAT Act have been invoked by the respondents, which could not have been invoked by the respondents in view of the aforesaid clear provisions of the VAT Act as jurisdiction to suspend certificate of registration of the petitioner under VAT Act can be assumed only in case when any of the clause from (a) to (e) of the section 27(5A) of VAT Act is attracted. In view of the suspension of certificate of registration of the petitioners, the petitioners are unable to generate Form C under section 8(4) of the CST Act which is required to be delivered to the sellers of the goods by the petitioners so as to avail the benefit under the CST Act of reduced rate of tax. As the certificate of registration is not restored after the suspension period is over, the petitioner is also suffering from non-issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one at Talegaon, Maharashtra and another in Halol, Gujarat. The petitioner No.1 was purchasing some models from Maharashtra plant and some from Gujarat plant and therefore, it had obtained Certification of Registration in Form 102 under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the VAT Act ), and also under the Central Sales Tax Act, 1956 (hereinafter referred to as the CST Act ). Both these Certification of Registration were effective from 1.7.2002. 4.2 The respondent No.3 State Tax Officer (2), Ghatak-8, (Unit 64), Surat issued a notice in Form 104 under section 27 of the VAT Act read with rule 10 of the Gujarat Value Added Tax Rules, 2006 (hereinafter referred to as the VAT Rules ), proposing to cancel or suspend Certificate of Registration granted to the petitioner No.1 under the VAT Act and the CST Act due to non-payment of Entry tax and interest thereon for the period 2014-15, 2015-16 and 2016-17 under the provisions of Gujarat Tax on Entry of Specified Goods into Local Areas Act,2001 (hereinafter referred to as Entry Tax Act ). 4.3 The petitioners by reply dated 25.10.2016, submitted that the petitioner is facing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; or, has failed to pay tax under section 30; or, has failed to file declaration or intimate the changes as required under section 65 or 66; or, has failed to produce the books of accounts required under section 67 of the VAT Act, and after recording the reasons in writing and after giving an opportunity of being heard, the Commissioner can suspend the certificate of registration from such date not earlier than the date of order of suspension, as may be specified by him in the order. It was submitted that on a perusal of the impugned order dated 25.10.2016, it is clear that none of the ingredients of section 27(5A) of the VAT Act have been complied with, inasmuch as the Commissioner has passed the impugned order on 25.10.2016 for suspension of the registration certificates under the VAT Act and the CST Act with effect from 1.7.2016, which is prior to the date of the order. Moreover, for the purpose of passing the order of suspension, no opportunity of hearing was provided to the petitioners as on the date on which the petitioners submitted the written submissions, the impugned order was passed. It was submitted that the order of suspension can be passed under sub-section (5A) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner had not paid the self-assessed tax for the relevant period under the VAT Act is illegal. It was therefore, held that granting of C form declarations cannot be stalled on the ground of unpaid dues of a dealer, indirectly taking such measure by way of tax collection and recovery. Relying upon this judgment the Petitioner stated that pursuant to the order of suspension, the petitioner is unable to issue C Form to its dealers under CST Act. 6. On the other hand, Mr. Soaham Joshi, learned Assistant Government Pleader submitted that the Commissioner of Commercial Tax has passed the impugned order as the petitioner has defaulted on payment for more than three times with regard to the Entry tax and the notice under section 104 of the VAT Act was also issued to the petitioners on 27.9.2016 for non-payment of the amount of ₹ 1,78,29,882/- and another notice dated 25.10.2016 was issued for non-payment of an amount of ₹ 1,33,35,651/-. It was submitted that as far as the issue with respect to input tax credit of Entry tax under section 11(1)(a)(iii) of the VAT Act is concerned, the same is permitted to be paid as an Entry tax. However, in the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from 01.07.2016. Learned advocate for the petitioner referred to affidavit in rejoinder filed by the petitioner and submitted that accountant of the petitioner provided copy of manual returns on 04.12.2018 to the Respondent No. 3 as it was requested by him, after filing of the present petition. It was therefore submitted that it cannot be said that the Petitioner had filed its returns for the first time on 04.12.2018. It is further stated by the Petitioner in its rejoinder that when its accountant personally visited to the office of the Respondent No. 3 to re-submit returns on 04.12.2018, he verified inward Entry register maintained in office of the Respondent No. 3 and it was noticed that inward Entry nos. 4252 and 1242 were pertaining to filing of Vat returns of the Petitioner company for the period 01.10.2016 to 31.12.2016 on 14.02.2017 and for the period from 01.01.2017 to 31.03.2017 on 06.07.2017 respectively. The petitioner therefore denied the averments of the Respondent No. 3 that the Petitioner had filed its returns for the first time on 04.12.2018. With respect to submission of the Respondent that C Form of ₹ 47,67,553/- were already issued to the Petitioner fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, it is crystal clear that such power can be exercised only for the failure on the part of the dealer to pay the tax under section 30 of the VAT Act. Further, under sub-section (27) of section 2 of the VAT Act, tax means a tax leviable and payable under the Act on sales or purchase of goods and includes lump sum tax leviable or payable under section 14, 14A, 14B, 14C or 14D. 10. Admittedly, on the facts of the case, the order of suspension of registration of the petitioners is passed on failure of the petitioners in non-payment of Entry tax, which is evident from the documents produced along with the affidavitin- reply filed by the respondents wherein it is revealed that for the year 2014-15, 2015-16 and 2016-17, a total amount of Entry tax not paid by the petitioner was ₹ 16,53,961/- whereas the VAT Act not paid is ₹ 61,186/-. Moreover, the proposal made by the respondent No.3 on 27.9.2016 at page nos. 70 and 71 filed along with affidavit in reply also refers to non-payment of Entry tax by the petitioners. Thus, from the aforesaid facts, it is clear that the petitioners certificate of registration has been suspended from 1.6.2016 to 31.3.2017 for n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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