TMI Blog2020 (1) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... dit assessment and limitation for completing in such assessment as provided under Section 33 of the Act. The respondent authorities cannot be allowed to circumvent the limitation provision for completing audit assessment by permitting resort to the powers of summary adjustments under Section 27 which are peculiar in nature and are available only in case where notice under sub-section (2) of Section 24 of the Act has been issued to a dealer. The impugned orders under Section 27 of the TVAT Act are set aside - petition allowed. - WP(C) 1109 OF 2019 and WP(C) 1111 OF 2019 - - - Dated:- 20-1-2020 - CHIEF JUSTICE MR. AKIL KURESHI AND MR. ARINDAM LODH JJ. Present: For the petitioner(s): Mr A.K.Saraf, Sr.Advocate. Mr. Biplabendu Roy, Advocate. Mr. Pritam Baruah, Advocate. Ms. S. Das, Advocate. For the respondent(s) : Mr. D. Bhattacharjee, G.A. JUDGMENT ORDER (ORAL) (A. Kureshi, CJ). These petitions arise out of common background. They have been heard together and would be disposed of by this common judgment. 2. Facts being similar, we may notice from WP(C) 1109/2019. 3. Petitioner is an individual and is engaged in the business of operating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 2010-11 to 2012-13 mentioning the amount of discount. Generally, sale value is determined after deducting all kinds of allowable discounts to the licensees/consumers/purchasers. In the instant cases, the dealer reflected only the amount of exempted sales in the return(s) which was deducted from the amount of total sales. The total taxable sales is derivable after deducting the exempted sales from the total sales but in the instant cases, it appears that the dealer recorded the total taxable sales lessening the actual. Hence, the submission of Sri Pankaj Behari Saha is not acceptable and maintainable in the light of discussion made above. Therefore, I find no alternative option but to take penal action against the dealer as per provision of the TVAT Act, 2004. In view of the above and after careful examination of the facts covering all aspects and discussion made above, I am of the opinion to levy applicable interest in addition to the balance amount of tax/VAT payable for the period from 2010-11 to 2012-13 and in consideration to the gravity of the consecutive offence committed by the dealer, I am of the opinion to impose penalty at least @10% on the balance amount of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition contending that the respondent No.4 has exercised proper powers after issuing show cause notice to the petitioner. Impugned order is appealable. 10. Chapter V of the TVAT Act pertains to returns and assessment. Section 24 contained in the said Chapter pertains to periodical income and tax. Relevant portion of the Section 24 of the TVAT Act reads as under:- 24. Periodical returns and payment of tax : (1) Every registered dealer shall furnish return in such form for such period, by such dates and to such authority, as may be prescribed: Provided that the Commissioner may, subject to such conditions and restrictions as may be prescribed, exempt any such dealer or class of dealers from furnishing such returns or allow any such dealer (a) to furnish them for such different periods; or (b) to furnish a consolidated return relating to all or any of the places of business of the dealer in the State of Tripura for the said period or for such different periods and to such authority, as he may direct. (2) If the Commissioner has reason to believe that the turnover of sales of any dealer has exceeded the taxable limit as specified in subsection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een initiated, the limitation as specified in this subsection shall not apply. (2) Any assessment made or penalty imposed under this Chapter shall be without prejudice to prosecution for any offence under this Act. 14. Section 34 pertains to turnover escaping assessment authorising the Commissioner to serve a notice to the dealer and to carry out best judgment assessment in case he has reasons to believe that the whole or any part of the turnover of the dealer in respect of any period has escaped assessment or being under assessed or being assessed at a lower rate or wrongly allowed any deduction or the dealer has been allowed wrong credit. 15. All these provisions noted above contained in Chapter V of the TVAT Act pertaining to returns and assessment thus provide for detailed procedure for requiring a dealer to file periodic returns of his turnover, for audit assessment of such returns if so desired and also to address the issues of turnover escaping assessments. The relevant provisions of Sections 24 and 27 need to be looked from the angle of the scheme contained in Chapter V of the TVAT Act concerning returns and assessments. 16. Sub-section (1) of Section 24 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 30 and most significantly, the audit assessment under Section 31 of the TVAT Act. 20. The special powers can be exercised only in relation to a dealer to whom notice has been issued by the Commissioner under Section 24 of the Act. Section 24 refers to issuance of notice only under sub-section (2) of the Act. Necessarily, therefore, unless and until such notice is issued in terms of sub-section (2) of Section 24 of the TVAT Act, the TVAT authorities cannot invoke the powers under Section 27 of the TVAT Act. Any other view would defeat the very scheme of the said Chapter providing for audit assessment and limitation for completing in such assessment as provided under Section 33 of the Act. The respondent authorities cannot be allowed to circumvent the limitation provision for completing audit assessment by permitting resort to the powers of summary adjustments under Section 27 which are peculiar in nature and are available only in case where notice under sub-section (2) of Section 24 of the Act has been issued to a dealer. 21. In the result, impugned orders under Section 27 of the TVAT Act are set aside. Any demand notices consequent to such orders shall also st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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