IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 4530 OF 2007

IN THE MATTER OF:

An application under Article 102(2)(a)(1) and(ii) of the Constitution of the People’s Republic of Bangladesh.

And

IN THE MATTER OF: Abdul Momen Limited

.... Petitioner

-Vs-

National Board of Revenue and others

....Respondents

Mr. Munshi Moniruzzaman, Mr. Minhaduzzaman Leeton, Ms, Shuchira Hossain, and Mr. S.M Shamsur Rahman and Ms. Nahid Sultana Jenny, Advocates

... for the Petitioner

Ms. Nasima K. Hakim, Deputy Attorney General, Ms. Tahmina Polly, with Mr. Elin Imon Saha, and Mr. Ziaul Hakim, Assistant Attorney Generals.

... For the Respondents-government.

Heard on: 13.02.2024 and 28.02.2024 Judgment on: 06.03.2024.

Present:

Mr. Justice Md. Iqbal Kabir

and

Mr. Justice S.M. Maniruzzaman

S.M. Maniruzzaman, J:

In this Rule, the respondents have been called upon to show cause as to why the Order under Nothi No. 4th/A (12)93/Musak/

Co.Panio/2001/1286 dated 15.03.2007 passed by the respondent No. 3 (Annexure-T) directing the petitioner to make payment of Tk. 14,55,189/- failing which action will be taken under Section 56 of the Value Added Tax Act, 1991 in violation of Section 9 and 55(1)(3) of the Value Added Tax Act 1991 should not be declared to have been passed without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper.

At the time of issuance of the Rule the operation of the impugned order dated 15.03.2007 (Annexure-T) was stayed by this Court for a prescribed period.

Facts, relevant for disposal of the Rule, in short, are that the petitioner is a private limited company incorporated under the Companies Act, 1994 and is engaged in the business of producer “Carbonated Soft Drink” (Coke, Fanta and Sprit). In course of business, the petitioner obtained VAT Registration Certificate from the concerned VAT office under the Value Added Tax Act, 1991 (in short, the Act, 1991) for the purpose of payment VAT and since then it has been paying VAT regularly. Suddenly, respondent No. 4, Superintendent, Customs, Excise and VAT, Kaptai Circle, Chattogram issued a demand notice upon the petitioner on 13.09.2005 alleging inter alia that the petitioner has illegally taking rebate in the fiscal year 2003-2004 against raw materials to the tune of Tk. 25,24,883/- which is liable to be paid by the petitioner or to adjust the said amount to the current account registered. On receipt thereto the petitioner filed an application on 24.09.2005 before the said respondent

requesting to supply the relevant documents on the basis of demand for making reply against the notice. The said respondent without considering the representation issued another notice on 18.10.2005 upon the petitioner directing him to pay the said amount within a stipulated time stated therein. On receipt thereto the petitioner further made a representation before the concern respondent contending that the petitioner has been supplying its products on the basis of declared price which is based on input-output cost analysis and paying VAT regularly and for payment of the VAT the petitioner filed Mushak-1 for fixing its based value and accordingly the petitioner paid VAT in accordance with law. On receipt thereto the said respondent issued several letters upon the petitioner requesting to appear before him for hearing.

During pendency of final decision, the respondent No. 4 further issued a letter on 24.05.2006 asking the petitioner they would conducted an audit of the petitioner company and for that reason the business documents were necessary for audit. In response thereto the petitioner produced necessary documents for the purpose of conducting audit. The respondent without giving any final decision against the demand notice dated 13.09.2005 further issued a notice on 19.04.2006 asking the petitioner to pay an amount of Tk. 14,55,189/- as per aud