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TMI Blog2025 (5) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the West Bengal Taxation Tribunal Act, 1987 challenging an assessment order dated 27th June, 2018 for the period 2015-2016 under the provisions of the West Bengal Value Added Tax Act, 2003 (hereinafter referred to as "the Act"). Primarily two sets of grounds were raised, one with regard to the constitutional validity of the amendment made to Section 84 of the Act read with Rule 138 (2) (b) (ia) of the VAT Rules, 2005 as being unconstitutional, unreasonable and arbitrary. The second set of grounds was on the merits of the matter questioning the addition of 40% to the Contractual Transfer Price (CTP) and making an assessment on the same and levying tax. 2. On the first aspect, the learned Tribunal was right in holding that the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the Tribunal. Even assuming a concession is given, unless the same is unequivocal, the same will not bind the party. 6. Be that as it may, we find that the assessment order dated 27th June, 2018 is undoubtedly a high-pitched assessment. In more than one place, the Assessing Officer used the expression "best of judgment". This, obviously could not have been a best of judgment assessment since a draft assessment order dated 11th June, 2018 was drawn, the petitioner was granted opportunity to place his submission, which was placed and the submissions have been recorded in the assessment order dated 27th June, 2018 and if that be so, the Assessing Officer is required to reject the submission and then take a decision on the merits b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s VAT audit report in respect of the works executed for each state. Accordingly in the works executed in West Bengal separate VAT audit report is maintained by the petitioner and the said report is duly certified by the Chartered Accountant of the petitioner. The said VAT Audit report was duly produced along with consolidated Profit & Loss Account before the respondent no. 1 at the time of assessment but the respondent no. 1 insisted for separate profit and loss account in respect of West Bengal. VAT audit report prepared for West Bengal would give the total picture of the works executed in West Bengal. Respondent no.1 on the mere fact that profit and loss account was not produced for the State of West Bengal added 40% to the contractual tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r again added a sum of Rs. 11.99 Crores with the contractual transfer price and such addition is nothing but double taxation on the petitioner. If the increased price is already included in the bills and shown as contractual transfer price such increased price cannot be again included in the contractual transfer price. Therefore, addition made by the respondent no.1 to the extent of Rs. 11.99 crores should be declared invalid in law." 10. The above aspect of the matter has to be gone into since it is the specific case of the petitioner/dealer that in respect of the works executed in West Bengal, separate VAT audit report is maintained by the petitioner and the said report is duly certified by the Chartered Accountant of the petitioner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order in its entirety, but, however, considering the fact that the Assessing Officer has made certain observations in the assessment order dated 27th June, 2018 on which the petitioner/dealer had no opportunity to put forth the case, those observations shall be treated as a show-cause notice and the petitioner is directed to submit his reply alongwith supportive documents within a period of three weeks from the date of receipt of server copy of this order, after which an opportunity of personal hearing shall be afforded to the authorised representative of the writ petitioner/dealer either virtually or in person and a fresh assessment order be passed on merits and in accordance with law. 15. It is made clear that this order h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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