M/S KMC Construction Ltd vs State Of Tripura And Ors

[1] Heard Mr. B N Majumder, learned counsel appearing for the petitioner as well as Mr. A. K. Bhowmik, learned Advocate General assisted by Mr. K. Dey, learned Addl. GA. appearing for the respondents No.1, 2 and 3 and Mr. H. Deb, learned Asst. S.G. appearing for the respondent No.4.

[2] By means of this petition, the petitioner which is a company incorporated under the Companies Act, 1956 has urged this court to quash the notice of demand dated 15.05.2020 (Annexure-2 to the writ petition) and further, to prohibit the respondents from acting in furtherance of the said notice dated 15.05.2020.

[3] Mr. B N Majumder, learned counsel appearing for the petitioner has submitted that the petitioner has filed the first revision petition under Section 70 of the Tripura Value Added Tax Act, 2004, hereinafter referred to as TVAT Act, against the order of assessment dated 17.01.2020 for the assessment years 2016-17 and 2017-18. Mr. Majumder, learned counsel has further pointed out that a separate petition for staying the operation of the said assessment order dated 17.01.2020 has also been filed before the revisional authority urging that no action on the basis of that assessment order dated 17.01.2020 be taken during pendency of the revisional petition filed by the petitioner.

[4] Mr. Majumder, learned counsel has shown us Para 4 of the said petition for staying the operation of the assessment order dated 17.05.2020 which inter alia reads as follows:

"4. From the revision petition it would be emerged that the during the year of assessment 2016-17, the petitioner has already paid excess amount of Rs.63,67,101.89 and as such the petitioner in not required to pay the statutory deposit for presentation of this Revision Petition before this Revisional Authority in terms of Section 17(2)(sic) of the TVAT Act."

[5] Initially Mr. Majumder, learned counsel has submitted that the Revisional Authority has not passed any order even not fixed any date for hearing and as such the petitioner has approached this court for interim protection from the operation of the said assessment order dated 17.01.2020.

[6] At this juncture, Mr. A. K. Bhowmik, learned Advocate General has produced an order passed by the revisional authority on 28.05.2020 in the said revisional case being 01/CH-V/2020 titled as M/s KMC Construction Ltd vs. The Superintendent of Taxes Charge-V, Agartala. In the said order, the revisional authority has recognized the filing of the revision petition by the petitioner against the order dated 17.01.2020 but it has been categorically observed in the said order that "the petitioner has not deposited necessary pre-requisite money as required U/S 70(2) of the TVAT Act, 2004 for which the case is liable to be rejected. However, for the fair ends of justice let the petitioner be provided one opportunity to deposit the pre-requisite money as required U/S 70(2) of the TVAT Act, 2004." The next date for that case has been appointed on 07.07.2020 at 12.20 pm to appear before the revisional authority for consideration of the admission."

For purpose of reference, the relevant provision of Section 70(2) of TVAT is reproduced hereunder:

"70 (1)......

70 (2)

In the case of any order other than an order to which sub-section (1) applies, passed by any person appointed under sub-section (1) of section 18 to assist him, the Commissioner may, either on his own motion or on a petition by a dealer or a transporter for revision, call for the records of any proceeding under this Act in which any such order has been passed and may make such enquiry or cause such enquiry to be made, and subject to the provisions of this Act, may pass such orders thereon, not being an order prejudicial to the dealer or the transporter, as he thinks fit;

Provided that no petition for revision by a dealer or a transporter shall be admitted by the Commissioner unless at least fifty percent of the amount of tax assessed, or as the case may be, fifty percent of the amount of penalty levied, has been paid by the dealer or the transporter where the order against which revision is filed relates to assessment of tax or imposition of penalty."

[7] Mr. Majumder, learned counsel has submitted that in Para 4 of the stay petition, categorical assertion has been made by the petitioner of payment of excess amount to the extent of Rs.63,67,101.89. This court finds that the said order dated 28.05.2020 has been made behind the back of the petitioner. As such, no adverse inference is drawn on suppression.

[8] Mr. A. K. Bhowmik, learned Advocate General has clearly submitted that if such excess amount had really been paid by the petitioner, they should have made a special petition drawing attention of the revisional authority so that no confusion can visit in respect of non-compliance of proviso to sub-Section (2) of Section 70 of the TVAT Act.

[9] This court finds sufficient force in the submission made by Mr. Bhowmik, learned Advocate General. But as from the record it has surfaced that the said amount has been shown on account as the excess payment, the revisional authority (the Commissioner of Taxes, Government of Tripura) is directed to consider the said excess amount and adjust the same against the pre-requisite payment in terms of Section 70(2) of the TVAT Act, if the said amount is really the excess amount. Since the revisional authority has fixed date on 07.07.2020 for consideration of admission, till that day, no coercive action shall be taken against the petitioner on the basis of the assessment order of the dated 17.01.2020 for the assessment years of 2016-17 and 2017-18. In addition thereto, the direction of the Commissioner of Taxes to the respondent No.5 to deduct the amount i.e. the assessed tax and penalty from his bill as reflected in the communication dated 15.05.2020 (annexure-2 to the writ petition), shall remain suspended till the decision in the revision petition.

[10] It is made further clear that on that day the prayer for staying the assessment order made by the petitioner be considered along with by the revisional authority in accordance with law.

[11] In terms of the above, this writ petition stands disposed of. However, the petitioner shall be at liberty to take recourse appropriately in accordance with law, if aggrieved by the order of the revisional authority.

[12] The petitioner is given further liberty to file an appropriate application showing the account of excess amount paid to the Commissioner of Taxes, so that the said amount can be adjusted against the requisite payment in terms of the proviso to Section 70(2) of the TVAT Act.

A copy of the order dated 28.05.2020 as produced before us by Mr. K. Dey, learned Addl.GA is taken into record.

A copy of this order be supplied to the counsel for the parties.