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IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, DEEPAK ROSHAN, JJ.
Shiv Jyoti Enterprises JV Binod Kumar Lal – Petitioner
Versus
State of Jharkhand and Others – Respondents
W.P. (T) No. 3957 of 2022
Decided On : 21-02-2023
Jharkhand Value Added Tax Act 2005 – Section 40(2), 35(6), 46(1), 36 – Rule 14(1) and (7) of the Jharkhand Value Added Tax Rules – Rule 14(1), (7) – Writ application has been preferred for relief – Held, Admittedly, present dispute did not pertain to filing of incorrect return with intention to suppress or conceal purchases; rather dispute pertains to filing of revised return belatedly – Thus, imposition of penalty under Section 40(2) of JVAT Act upon Petitioner is not sustainable eye of law and if justification of Respondents in this regard is accepted then provision of Section 30 more particularly sub-section 4 would be rendered otiose – In given facts and circumstances and in view of specific provision enshrined u/s 30(4)(d) of Act, it is apparent that there is no deliberate act of evasion of tax which would be warranting imposition of penalty on petitioner given language used in Section 40(2) containing penal provision – In fact it cannot be said to be an act of deliberately filing incorrect returns as revised return has been duly accepted by Assessing Officer – Writ application is allowed.
JUDGMENT :
1. The instant writ application has been preferred for the following relief:—
(ii) For quashing and setting aside the judgment and order dated 22nd November, 2021 passed in Revision Case No. DN 48 of 2021 (Annexure-11) wherein imposition of penalty under Section 40(2) of the Jharkhand Value Added Tax Act, 2005 (for short JVAT Act, 2005) by the Assessing Officer has been upheld.
(iii) For issuance of an appropriate writ, order or direction to the respondent-authorities to refund an amount of Rs. 17,35,000/- which has been realized by initiating recovery proceeding under Section 46(1) of the JVAT Act from the banker of the Petitioner-company.
2. Brief fact of the case is that the petitioner is engaged in the business of works contract on behalf of various entities including Government Entities. For the period in dispute, Petitioner purchased pipes from outside the State of Jharkhand for an amount of Rs. 1,55,69,332/- towards execution of works contract. The said interstate purchases were made through valid road permits duly generated from the official website of State of Jharkhand. Petitioner filed its original quarterly return and, inadvertently, reflected interstate purchases as ‘Nil’.
3. On 09.01.2016 “Before assessment” proceeding under Section 40(2) of the JVAT Act was initiated against the Petitioner by Respondents on the sole ground that for the period in dispute, it filed quarterly returns by reflecting therein inter-state purchases as ‘Nil’, but, as per data available in the Department's software, it was evident that petitioner utilized SUGAM-G for an amount of Rs. 1,55,69,332/- for inter-state movement of goods. Accordingly, Petitioner was directed to file its reply by 01.02.2016.
4. On 01.02.2016, the petitioner filed its reply by stating, inter-alia, that inadvertently, the amount of inter-state purchases made during the period in dispute could not be reflected in its original quarterly return. Accordingly, to rectify the mistake, it prayed for one month's time to file the revised quarterly return and on 21.02.2016, petitioner revised its quarterly return and disclosed the inter-state purchases of Rs. 1,55,69,332/- which could not be reflected in original quarterly return.
5. Interestingly, on the very next date i.e., on 02.02.2016, the Respondent No. 4 passed an order under Section 40(2) of the JVAT Act and imposed penalty of Rs. 25,68,940/- The calculation of penalty by the assessing officer is as under:
| Total amount alleged concealed turnover by petitioner | Rs. 1,55,69,332/- |
| (+) 10% profit and inward expenses | Rs. 15,56,933.20/- |
| Total | Rs. 1,71,26,265.20/- |
| 5% Tax at Rs. 1,71,26,265.20/- | Rs. 8,56,313.26/- |
| Penalty under Section 40(2) of the JVAT Act being thrice the amount of tax of Rs. 8,56,313.26/- | Rs. 25,68,940/- |
6. Being aggrieved by penalty order, petitioner filed Appeal before the Appellate Court and the Appellate Court vide its order dated 22.12.2017 dismissed the Appeal of the petitioner. Subsequently, petitioner also filed Revision Petition being Revision Case No. DN 10 of 2018 before the Commercial Taxes Tribunal and the learned Tribunal remanded the matter back to the Appellate Court vide its order dated 21.12.2018.
7. At this stage, it is pertinent to mention that on 25.03.2019, during the pendency of remand appellate proceeding, original assessment order under Section 35(6) of the JVAT Act was passed against the petitioner, wherein GTO of Rs. 5,41,73,159/- was determined by Re
The filing of revised returns after the initiation of penalty proceedings lacked bona fide and did not absolve the petitioner from liability under Section 40(2) of the JVAT Act.
The provisions imposing penal interest on assessees who voluntarily revise their returns are unconstitutional as they create an arbitrary distinction between honest taxpayers and those whose returns ....
Penalties for false documentation under Section 7-A(2) of the AP GST Act are valid, and revisions under Section 22(1) cannot address factual disputes.
Mens-rea is an essential pre-requisite condition for imposition of penalty under Section 54(1)(2) of the U.P. VAT Act, 2008.
The court established that the authority to review and revise assessment orders under the JVAT Act is limited and must adhere to procedural requirements, particularly regarding the initiation of revi....
Assessments beyond five years are invalid without proper notice, and best judgment assessments require rejection of returns, which was not adhered to in this case.
The main legal point established is that penalty can be imposed for deliberate fraud or misinformation by the Assessee under Section 61 of the RVAT Act, 2003.
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