9911796707
TMI Blog2019 (6) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... vires the Assam Value Added Tax Act, 2003 ('Act 2003' for short). In that light, the petitioner is also seeking that the circulars dated 08.09.2011, 18.11.2011, 14.03.2012, 14.03.2012 and 18.05.2012 be declared illegal and void abinitio. Further, the orders dated 22.05.2014 and 30.05.2014 passed by the Superintendent of Taxes and the Inspector of Taxes imposing the tax and penalty be quashed. 2. The petitioner is a private limited company which has its Registered Office at Kolkata and the Branch Office at Guwahati. It has been carrying on business relating to sale and supply of electronic goods. The petitioner is registered under the various enactments including the Act 2003. In the course of its business, the registered office at Kolkata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing of information in the electronic format is provided for. In that circumstance, it is contended that while checking the goods as empowered under Section 75(12)(B)(II) of Act 2003, the transporter could not produce the required documents and, as such, the consignment was seized. The petitioner also had not uploaded the document in the electronic format and, in such circumstance, the uploading which was attempted after five days would not meet the requirement. Accordingly, opportunity was granted to the petitioner and, on considering the reply, the penalty as provided in law was imposed. In that light, they seek to sustain their action. 4. In the background of the contentions, we have heard Mr. O.P. Bhati and Mr. M.K. Gogoi, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 Rules, when the power is given to the Commissioner, the proviso permitting the Commissioner to direct providing the relevant information in the electronic format before transporting the goods would amount to sub-delegation, which is not permissible in law. In aid of his contention, the learned counsel has relied on the decision in the case of A.K. Roy and another -Vs.- State of Punjab and others, (1986) 4 SCC 326 and in the case of Sahni Silk Mills (P) Ltd. and another -Vs.- Employees' State Insurance Corporation, (1994) 5 SCC 346 and submits that in the said cases the sub-delegation of the power is held unsustainable. 6. In order to appreciate the contention, we have at the outset taken note of the decisions relied upon by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such power, the Rule 2005 has been framed and the Rule 41 essentially is to satisfy the requirement of Section 75 relating to establishment of check-posts and to regulate the production of necessary documents and the manner in which the check-posts would function. In that regard, through sub-rule (5), a procedure is contemplated to enter the relevant information in the computer from the documents which would accompany the goods. Through the proviso, the Commissioner is empowered to direct the relevant information in the electronic format to be uploaded. Such proviso is a part of the Rule which is framed by the Government by which it provides for the Commissioner to issue appropriate directions. The same cannot be considered as sub-delegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. However, through the order sheet in the proceedings of the Superintendent of Taxes, the indication is that the Transporter has not made on-line declaration of the consignment which essentially is the noncompliance of sub-rule (5) to Rule 41 of Rule 2005. The same also indicates that the dealer is, therefore, asked to show-cause why taxes and penalty should not be imposed. Subsequent thereto, the order dated 22.05.2014, impugned herein, is passed wherein it is indicated that the petitioner had made the on-line declaration on 16.12.2013, about 5(five) days after arrival of the goods on 10.12.2013. The same is considered as a lapse and it is concluded that the dealer seems to have attempted to evade the tax payable under Act 2003. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir reply dated 7.1.2014 were to be examined to find out as to whether the said documents were genuine and whether the documents were in existence as on the date of movement of the goods. In that regard, if the authorities were satisfied that the documents in the physical form was available as on the date of the movement of the goods, in such event a consideration was necessary to be made as to whether penalty was leviable only because the uploading in the electronic format was not done. 10. In the instant case, no such exercise has been done, but the penalty has been imposed only on the observation that on-line declaration had not been made. Insofar as the tax levied at Rs. 50,475/-, in any event, the same was required to be paid and the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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