HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 10 Case :- WRIT TAX No. - 906 of 2011 Petitioner :- M/S Bhawana Housing Pvt. Ltd. Respondent :- Addl. Commissioner Grade-1, Commercial Tax And Others Counsel for Petitioner :- Rakesh Ranjan Agrawal,Suyash Agarwal Counsel for Respondent :- C.S.C. Hon'ble Arun Tandon,J.
Hon'ble Dr. Satish Chandra,J.
Heard Shri R.R. Agrawal, learned Senior Counsel assisted by Shri Suyash Agarwal, the leaned counsel for the petitioner.
The petitioner before this Court, is a company said to be engaged in the business of real estate developers etc. It is the case, that they were ill advised not to get themselves registered within the time permitted under Section 17 of the Uttar Pradesh Value Added Tax Act (hereinafter referred as VAT Act) i.e. within 30 days from the date they become liable for tax under the Act.
It is the case of the petitioner that a survey was conducted at the premises of the petitioner on 10th February, 2011. The petitioner was advised to get registered under the Uttar Pradesh VAT Act. Accordingly, the petitioner made an application for registration under Section 17 of the U.P. VAT Act on 21.02.2011. The petitioner also deposited a sum of Rs. 19,600/- as registration fee for the period during which he had failed to get himself registered earlier.
The application of the petitioner was considered by the Assistant Commissioner, Trade Tax Registration, Agra and vide order dated 21st February 2011, registration was granted in favour of the petitioner w.e.f. 21st February 2011 till the business is not discontinued.
The petitioner, thereafter, made an application for the registration being granted in his favour from back date i.e. from 01.01.2008 on the ground that he had deposited the late fee as provided for under Proviso to Section (2) of Section 17 of the Act. This application of the petitioner has been rejected under the order impugned by the Additional Commissioner, Zone 1, Agra on the ground that the registration from back date for depositing of the fine/late fee is permissible only in respect of persons, who were registered under the U.P. Trade Tax Act up to 31.12.2007 and could not get their registration renewed under the following VAT Act.
Shri R.R. Agrawal, Senior Advocate, on behalf of the assessee submitted before us that since under the Proviso to Section 17 of VAT Act, the late fee has been deposited by the petitioner, registration should have been granted from 01st January 2008 in favour of the petitioner as was prayed for.
Disputing the correctness of the stand taken, the learned Standing Counsel for the Department submits that deposit of the late fee under Proviso to Section 17 of the Act is only a condition for making the application for registration competent. Registration from back date is permissible only in respect of dealers covered by Section 17 (3), (4) and (5) of the Act i.e. dealers who were registered under the U.P. Trade Tax Act up to the cut of date i.e. on 31.12.2007 and made the application for renewal of the registration under Section 17(3), (4) and (5) of the VAT Act.
We have heard the learned counsel for the parties and examined the record of the present writ petition. It would be worthwhile to reproduced Section 17(1), (2), (3), (4) and (5) of the VAT Act:
17. Registration of dealers (1) Every dealer liable to pay tax under this Act shall obtain registration certificate issued by the prescribed registering authority in the prescribed form.
(2) Except as provided under sub-sections (3), (4) and (5), every dealer liable to pay tax shall, for issue of registration certificate, apply to the registering authority within a period of thirty days from the date on which such dealer has become so liable, in the prescribed form and manner along with proof of deposit of registration fee of one hundred rupees: Provided that a dealer who fails to apply for issue of registration certificate within the time prescribed, without prejudice to any other liability under this Act, may apply after depositing late fee at the rate of rupees one hundred for every month or part thereof for the period of delay.
(3) Subject to the provisions of sub-section (5), every dealer who has held immediately before January 1, 2008 a registration certificate or a provisional registration certificate issued under the erstwhile Act and is liable to pay tax under this Act from January 1, 2008, shall be deemed a registered dealer with effect from January 1, 2008: (The words "Subject to the provisions of sub-section (5), every dealer" was inserted w.e.f. 20-08-2010 vide notif. no 1101(2) dt. 20-08-2010, U.P. Act No 19 of 2010) Provided that where a dealer was required to pay any fee for renewal of the registration certificate under the provisions of the erstwhile Act, if the same has not been paid, the registration certificate shall not be deemed valid unless such dealer deposits renewal fee along with late fee of one hundred rupees within a period of thirty days form January 1, 2008.
(4) In the case of a dealer, who is liable for payment of tax under this Act from January 1, 2008 and whose application for issue of registration certificate under the erstwhile Act, is pending on January 1, 2008, shall be deemed a registered dealer under this Act with effect from January 1, 2008 if ?
(i) registration certificate is issued to him under the erstwhile Act; and
(ii) the dealer deposits renewal fee payable under the erstwhile Act and late fee payable under this Act, if any, within thirty days from the date on which registration certificate is issued to him under the erstwhile Act.
(5) (a) Every dealer who holds a valid registration certificate issued under the erstwhile Act and is liable to tax under this Act, shall submit to the registering authority or the assessing authority, as the case may be, an application in the prescribed form and in the prescribed manner, for issue of registration certificate by such authority relating to validity of such certificate under this Act, within a period of fifteen months from January 1, 2008: (w.e.f.01.01.2008) From the simple reading of the aforesaid provision, it is apparent that a dealer is liable to pay tax under VAT Act is required to get himself registered within 30 days from the date on which the dealer becomes liable for tax. If, such a dealer does not get himself registered within time, then Proviso to Section 17(2) permits making of the application for registration after expiry of the 30 days referred only on deposit of the requisite late fee.
In the facts of this case, it is admitted on record that the petitioner was not registered under the Trade Tax Act earlier and that he made an application for registration under the Value Added Tax for first time on 21.02.2011 and for satisfying the requirement to Section 17(2), so as to make his application competent, he deposited the required late fee. The payment of the late fee under the Proviso only makes the application for registration competent for being considered for registration. This payment of late fee will not have the effect of grant of registration from any back date as is claimed by the petitioner. During the period, the petitioner was not registered, he is to be treated as an unregistered dealer under the VAT Act.
The Commissioner rightly held that in respect of persons, who had valid registration under the Trade Tax upto 31st December 2007, but could not make the application under the VAT Act, then it is in their case Section 17(3)(4)(5) of the VAT Act apply and registration from back date on deposit of the late fee is permissible. But the provision do not apply in respect of persons, who make application for registration for the first time under the VAT Act for registration, their case is covered under Sub Section 2 of Section 17 of the Act.
We find no illegality in the order passed by the Additional Commissioner, Grade-I, Commercial Tax, Agra Zone, Agra. Writ petition, is accordingly, dismissed.
(Dr. Satish Chandra, J.) (Arun Tandon, J.) Order Date :- 21.4.2015 Anurag/-