1. Pfizer
Products India Pvt. Ltd. vs. State of
Maharashtra & Others
Writ
petition No. 3149 of 2019
Date
of order: 1st August, 2019
(Bombay
High Court)
Whether the part payment made in
the earlier round of appeal is required to be adjusted against the mandatory
part payment of 10% u/s 26A of the MVAT Act, 2002
FACTS
The petitioner had approached the
Hon’ble Bombay High Court under Article 226 of the Constitution of India
challenging the refusal of the Joint Commissioner to accept the appeal since
the same was not accompanied with proof of part payment as required u/s 26A of
the MVAT Act, 2002. The petitioner had in the earlier round of the same appeal
made the part payment as directed by the Joint Commissioner. The Joint
Commissioner had remanded that appeal.
HELD
The amounts deposited before the
appellate authority continued to be with the State, even though the earlier
order was set aside. Therefore, for the purpose of computing 10% payable u/s
26A of the MVAT Act, the amounts which were deposited in the earlier round with
the appellate authorities should be taken into account for computing 10% of the
disputed State tax under the MVAT Act for the appeal being entertained on
merits.
2.
Sudirman Paper Pvt. Ltd. vs. State of
Tamil Nadu
(Madras High Court)
Whether the revision order passed
in pursuance of the notices issued to the amalgamating company after
amalgamation is good in law
FACTS
A company, S, was amalgamated
with another company by order dated 20th September, 2012 of the High
Court with retrospective effect on and from 1st April, 2011 and this
fact was communicated to the Commercial Tax Officer concerned by letter dated 1st
November, 2012.
Notwithstanding such intimation
regarding amalgamation, revision notices were issued to the transferor company
and ultimately revised assessment orders were passed in the name of the
transferor company. The orders so passed were challenged before the Madras High
Court.
HELD
The Court directed that the
revised assessments were to be redone and completed giving an opportunity to
the transferee entity, i.e., the transferee company, to make objections and
show cause, or, in other words, a reasonable opportunity was to be granted to
it. The orders in question were directed to be treated as show-cause notices
prior to the revised assessment.
3. Arihant
Granite and Marbles vs. State of Tamil Nadu
73
GSTR 262
Whether order of penalty passed
without assessment is sustainable
FACTS
The petitioner had paid tax after
a visit by the enforcement branch. Thereafter, based on the report submitted by
the enforcement officials, the assessing authority issued a notice proposing to
impose penalty at the rate of 150% of the tax due under the Tamil Nadu VAT Act,
2006. The dealer filed an objection but the authority passed orders imposing
penalty at the rate of 100%. The dealer then filed a writ petition.
HELD
The A.O. ought to have issued a
notice of the proposal to the dealer, both in respect of its tax liability as
well as penalty, if so warranted, and passed the order of assessment thereafter
upon hearing the dealer in respect of both components. The payment of tax
amount by the dealer before the inspecting officials could not be a reason for
the A.O. not to pass the order of assessment in respect of the tax component as
well.
The report of the inspecting officials could not be
the only source or reason for passing the order of assessment; it might be one
of the sources or reasons for doing so, since the A.O. while discharging the
functions of a quasi-judicial authority when making the assessment, had to pass
an order with independent application of mind. In this case, the A.O. had
straightaway issued the notice of proposal for imposing penalty and,
thereafter, passed the order confirming the proposal. The order was an
independent order levying penalty alone without assessing the tax liability.
The assessing authority had no jurisdiction to impose penalty by a separate and
independent order. The order imposing penalty was set aside.
