Rajeev Ranjan Prasad, J. –

I.A. 1 of 2023

This is an Interlocutory Application seeking condonation of delay of 397 days in filing of the present appeal.

2. We find from the records that the office had pointed out one of the defects that learned counsel for the appellant should disclose the date of receipt of the copy of the order dated 07.06.2022 and thereafter, the period of limitation would be calculated.

3. Since the matter has been listed under heading ‘For Admission’ today, we heard the whole matter on merit, thereafter it has been pointed out that an order on the application seeking condonation of delay is required to be passed. We have been informed that there is a delay of 397 days in filing of the present appeal.

4. Learned counsel for the sole respondent does not oppose the prayer for condonation of delay.

5. We, therefore, condone the delay.

6. Accordingly, I.A. No. 1 of 2023 stands allowed.

MA No. 678 of 2023

7. Heard Mr. Vivek Prasad, learned GP- 7 for the appellant and Mr. Gautam Kejriwal, learned counsel for the respondent.

8. This Miscellaneous Appeal has been preferred under Section 79 of the Bihar Value Added Tax Act, 2005 (hereinafter called ‘the Bihar VAT Act’ or ‘Act of 2005’) since repealed. The State of Bihar is aggrieved and dissatisfied with the order dated 07.06.2022 (hereinafter referred to as the ‘impugned order’) passed by the Commercial Taxes Tribunal Bihar, Patna (in short ‘The Tribunal’) in the Appeal Case No. PT- 99/2017. By the impugned order, the Tribunal has been pleased to set aside the penalty order dated 05.09.2014 and the order dated 27.02.2017 passed by the Joint Commissioner (Appeal), Patna.

Brief Facts of the Case

9. From the narration of facts present on the records, it appears that on 30.08.2014 at about 11 P.M., a team of Sales Tax Officers inspected and verified the truck bearing Registration No. BR-01GC-8831 at Buxar. The Sales Tax Officers were of the view that in the said truck, the goods were being transported in violation of Section 61(1) of the Act of 2005, therefore, show cause notice was issued to the transporter and finally a penalty of Rs. 2,01,170.00/- under section 61(3) read with section 56(4) (b) of the Act of 2005 were imposed.

10. The sole respondent herein paid the said amount of penalty and got the release of goods but at the same time being aggrieved by the order imposing penalty and the demand notice, he raised his grievances before the Joint Commissioner of Commercial Tax (Patna Division) giving rise to Appeal Case No. S.T./I.B.(C)-04/14-15 for the relevant period 2012-13.

11. A number of pleas were raised before the Joint Commissioner of Commercial Tax (Patna Division) but were rejected. The order passed by the Joint Commissioner of Commercial Tax (Patna Division) was challenged before the learned Tribunal where a plea was taken on behalf of the sole respondent that the inspection, verification and seizures itself appear to be illegal and unauthorized as no letter of authorization had been issued as mandatorily required in terms of Section 56(2) (b) of the Bihar VAT Act read with Rules 35(4) and (5) of the Bihar Value Added Tax Rules, 2005 (hereinafter referred to as the ‘Rules of 2005’) framed thereunder. It was contended that on account of this legal infirmity, the initiation of penalty proceeding and imposition of penalty would be illegal as the same was passed without jurisdiction.

12. The learned Tribunal has discussed the relevant provisions of the Bihar VAT Act. It has ultimately concluded that there is a mandatory provision of law to get authorisation from the Competent Authority before conducting inspection or in case, where it is in the interest of revenue, the Officer may, for reasons would be recorded in writing, proceed to inspect all the places of business of the dealers, transporting goods or the owner of warehouse or godown without obtaining such authorization which may be granted subsequently. In paragraph ‘13’ of its order, the Tribunal observed as under: