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TMI Blog2024 (5) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... resulted in purported detection of the fact by the said Inspection Officer that there were 35 improper invoices/estimates which were pointer to the fact that the respondent was not issuing sale invoices in respect of the sale transactions being conducted by it. 04. This development led to issuance of a notice in terms of order dated 30.01.2006 by the Commercial Tax Officer to the respondent resulting in imposition of a penalty of an amount of Rs. 3,50,000/- upon the respondent. 05. Against this order of imposition of penalty by the Commercial Tax Officer against it, the respondent preferred a statutory appeal before the appellate authority of Deputy Commissioner, Commercial Taxes (Appeals), Jammu which came to be dismissed vide an order dated 29.10.2006 thereby maintaining the imposition and demand of payment of penalty of Rs. 3,50,000/- against the respondent. 06. Against this appellate authority order, the respondent approached SSTAT with an appeal on file no. 298/ST/T/J on 10.01.2007 thereby posing challenge to the original order of imposition of penalty confirmed by the appellate authority order. 07. The SSTAT in terms of its adjudication vide order dated 23.03.2007 came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisaged under section 69(1)(k), the appropriate authority is required to determine the tax payable with respect to the transaction of sale with respect to which a person has failed to issue tax invoice or retail invoice or issues a false tax invoice or retail invoice or receives and uses a tax invoice, knowing it to be false. As understood and held by SSTAT, it is only upon adjudging the tax liability at the first instance that the penalty imposition and assessment can come into picture as to whether the penalty is to be levied ten times of the tax payable on each such default or rupees ten thousand whichever being higher. 12. The SSTAT found the original order of the appropriate authority i.e. Commercial Tax Officer to be defective in its nature of having imposed the penalty of Rs. 3,50,000/- by reference to 35 questionable/improper invoices/estimates, meaning thereby ten thousand per questionable/improper invoice. The quantum of penalty of Rs. 3,50,000/- so imposed itself recommends an inference that the penalty imposed was not ten times of the tax payable per invoice but Rs. 10,000/- being higher liability as against the ten times value of the tax payable per invoice. Since, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any service, any goods directly or indirectly, for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes ..................................... * Section 2 (XXVIII) defines "Sale" to be with all its grammatical variations and cognate expressions meaning every transfer of the property in goods, other than by way of mortgage, hypothecation, charge or pledge, by one person to another in the course of trade or business for cash, deferred payment or other valuable consideration and includes ............................... * Section 2 (XXXIII) defines "Tax" meaning tax payable under the Act. * Section 2 (XXXIV) defines "Tax Invoice" an invoice in such form and containing such particulars as may be prescribed. Section 12 defines "Incidence of Tax." Section 12 (1) provides which dealer is liable to tax under the J&K Value Added Tax Act. Section 12 (2) to 12 (4) deals with the taxable limits in relation to a given dealer and Section 12 (5) calculation of the gross turnover to determine the liability to pay tax under the Act, which is to be calculated on the basis of turnover of all the sales or purchases. Whether such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casual trader when making sale of goods in the State to non-VAT dealers, unregistered dealers and consumer. In the present case the invoices in reference are the ones relatable to sale of goods to consumers. Now, once a retail invoice deals with a particular sale of good transaction, as such, Section 69 has in its legislative intent the default on the part of the dealer under clause (k) sub-section 1 to be a tax invoice specific. 20. Tax invoice means a particular sale transaction made by the VAT dealer or a casual trader to a consumer. It is a tax invoice which generates default and if that default is proved then it invites penalty, against a defaulting person, equal to ten times of the tax payable on such default or Rs. 10,000/- whichever is higher. A questionable tax invoice, be it sham, false, forged or fake, has no relation with the day on which it is or was generated. If on any given day, a VAT dealer or a casual trader has generated any number of objectionable tax invoices each representing a respective sale transaction, then each invoice will constitute default as envisaged by clause (k) of sub-section 1 of section 69. For each tax invoice, an individual default gets gene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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