AI Structured Summary
Not yet generated for this judgment
Judgment
By means of the writ petition, the petitioner, M/s K.D. Industries, which is a ''dealer'' within the meaning of Section 2(b) of the Tripura Sales Tax, 1976, in short, TST Act, has challenged the order dated 19.12.2013 delivered in Revision Case No.04/CH-VII/08/343-46 by the Commissioner of Taxes, the Revisional Authority, whereby the challenge to the order of assessment dated 29.10.2008 for the assessment year 2000-01 passed under Section 21(2) of the TST Act has been discarded by affirmance.
The essential fact may be introduced at the outset for purpose of appreciating the challenge. The Superintendent of Taxes, Charge-VII had assessed the petitioner on 29.10.2008 under Section 9(3) of the TST Act and raised the demand to the tune of Rs.5,40,661.00 on the basis of the purported assessment for the assessment year 2000-01. Even though a sum of Rs.1,74,588.00 was deducted as tax at source by the Deputy General Manager, Electrical Division No.III on 30.03.2001 from the bill of supply of PCC poles and the said transaction fell within the turnover for the assessment year 2000-01, the Deduction Certificate, commonly known as the TDS Certificate, was issued on 27.12.2008 i.e. after the assessment was made. Non-production of the Deduction Certificate during the assessment is the root of the controversy leading to institution of this writ petition.
The assessment was completed on 29.10.2008 raising the said demand. But the assessing authority did not include the said tax to the extent of Rs.1,74,588.00 on the account of tax paid by the dealer, the petitioner herein, and the said amount of tax has been shown as the outstanding in the account of the petitioner and accordingly the interest has been raised on the said amount. How the assessment has been made is available in the order of assessment and which is as under :
Description 2000-01 2001-02
T.O.D. : Rs.1,19,97,410 Rs.1,41,25,028.00
Tax Payable : Rs.14,39,689.20 Rs.16,95,003.36
Less Tax Paid by Challan : Rs.2,55,565.00 Rs.Nil
Less Tax paid through deducted at source : Rs.10,03,653.00 Rs.16,92,606.00
To be Paid : Rs.1,80,471.00 Rs.2397.36
Int. Charged : Rs.3,42,142.93 Rs.3945.65
Penalty imposed : Rs.18047.10 Rs.Nil
Balance due : Rs.540661.03 Rs.6343.01
Say : Rs.540661.00 Rs.6343.00
It is apparent from the table as reproduced above from the order of assessment that the total turnover has been accepted at Rs.1,19,97,410.00. Thus, the tax payable was determined at Rs.14,39,689.20. The tax paid by challan was Rs.2,55,565.00, whereas the tax paid through the deduction at source is Rs.10,03,653.00. Thus, the assessing authority determined the tax to be paid at Rs.1,80,471.00. On the basis of the said determination, the interest to be paid was ascertained at Rs.3,42,142.93. Thus, a demand of Rs.5,40,661.00 was raised inclusive of the interest and penalty of Rs.18,047.10. The petitioner was persuaded to challenge the said determination by filing a revision petition under Section 21(2) of the TST Act. While challenging the order of assessment dated 29.10.2008 it was contended that a sum of Rs.1,74,588.00 was deducted as tax at source. Since the dealer could not obtain the Deduction Certificate in time, he could not deposit the same before the Assessing Authority, but the dealer had orally communicated about such deduction. For non-production of the Deduction Certificate, the Assessing Authority did not give any benefit of the said deducted tax.
From the impugned order dated 19.12.2013 passed by the Revisional Authority, it would be apparent that the TDS Certificate dated 27.12.2008 was produced to the Revisional Authority and the Revisional Authority by the said impugned order has observed as under : "Further, it is also revealed that the date of deduction of tax was 30.03.2001 and the TDS certificate was issued on 27.12.2008 i.e. after more than seven and half years time to deduction. The petitioner had about seven and half years time to produce the TDS certificate."
In the premises as stated, the Revisional Authority had discarded the plea that no reasonable opportunity was given to the dealer to submit the said TDS Certificate. Further, the Revisional Authority has observed that whether the said tax deducted at source, which was not accounted for, was related to the turnover for the year 2000-01 or not, has not been established by the dealer. Hence, the revision petition was dismissed on affirmance of the order dated 29.10.2008.
Being aggrieved by that order, the petitioner has approached this court.
Mr Suman Bhattacharjee, learned counsel appearing for the petitioner has contended that on affirmance of the order of assessment the Revisional Authority acted against law. The petitioner has been subjected to pay the tax twice for the same transaction. The statute does not authorise the Assessing Authority to realise tax in the said manner.
Mr. D.C. Nath, learned counsel appearing for the Revenue, has submitted that initially the petitioner had shown the turnover much less than the actual turnover. When by verification of the ledger the turnover was recorded, it came to Rs.1,19,97,410.00. There had been a deliberate concealment of the turnover. However, when confronted, Mr. Nath, learned counsel for the Revenue, has fairly conceded that the Assessing Authority in the order dated 29.10.2008 has observed that : "In reply to the above difference the dealer fails to adduce any satisfactory reply. So, I am inclined to accept the higher side of actual turnover.
Purchase figures as per ledger for the Years 2000-01 to 2004-05 are also consistent with the purchase figure through permit VIII, VIII-A and local purchase made for the said respective years."
No exception has been taken regarding the said omission or purported concealment as stated.
If the said deducted tax is added to the paid tax, the total paid tax would come to Rs.14,33,806.00 [Rs.2,55,565.00 (paid by challan) + Rs.10,03,653.00 (tax deducted at source) + Rs.1,74,588.00 (tax deducted at source)]. Therefore, the tax to be paid would come to Rs.5,888.20 [Rs.14,39,689.20 - Rs.14,33,806.00]. The said amount would have been exigible to interest as within the stipulated time the tax was not deposited, may be for the reason that the actual turnover was not shown.
Section 25(4) of the TST Act however provides that if the amount of tax paid within the prescribed date is not less than ninety per centum of the tax as finally assessed, no interest as provided for in sub-section (1) of Section 25 of the TST Act shall be levied. Mr. Bhattacharjee, learned counsel appearing for the petitioner, therefore, urged that the demand raised after the order of assessment dated 29.10.2008 is grossly unsustainable.
Having appreciated the claims and the counter-claims, we are of the view that the petitioner has been levied with double tax for the same transaction and even though the substantial part of the tax was deducted at source in terms of Section 3AA of the TST Act and another substantial part of the tax was paid by the challan, the petitioner has been levied with interest on the tax deducted at source on 30.03.2001 to the extent of Rs.1,74,588.00 and for the purported delayed payment the petitioner has been charged with penalty. This is grossly illegal. Even though the lapse of the petitioner is manifest in his action that he did not submit the Deduction Certificate in time, at least before the assessment was complete, but it cannot be denied that the authority which deducted the tax at source is for all purpose was acting for the Revenue. When the said amount was deducted, the petitioner could not have been charged with the said tax in the assessment. However, since no document was available before the Assessing Authority it cannot be held on the face of the record that the order of assessment was suffering from manifest illegality. But when the Deduction Certificate was produced before the Revisional Authority, the Revisional Authority would have condoned the delayed production of the Deduction Certificate and relived the assessee, the petitioner herein, from double taxation made in the manner as aforestated. Hence, we are of the view that both the revisional order dated 19.12.2013 [Annexure-D to the writ petition] and the order of assessment dated 29.10.2008 [Annexure-A to the writ petition] are liable to be set aside, and accordingly those are set aside.
Having regard to the nature of the controversy, we direct that the Assessing Authority i.e. the Superintendent of Taxes, Charge VII to pass a fresh assessment order after taking into consideration the Deduction Certificate dated 27.12.2008 issued by the Deputy General Manager, Electrical Division No.III, Agartala. The original Deduction Certificate dated 27.12.2008 (Annexure-C to the writ petition] shall be furnished to the said Assessing Authority by the petitioner within a period of 1(one) month from today, if not produced by now, and the assessment order shall be made within a period of 3(three) months from the day of receiving the copy of this order. It is made further clear that the demand raised against the petitioner stands quashed without any bar to raise demand after the assessment is made afresh for the assessment year 2000-01.
In the result, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.