Jharkhand High Court
M/S. Balaji Rakesh vs State Of Jharkhand on 31 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 4371 of 2022
M/s. Balaji Rakesh, through its proprietor Mr. Balaji Rakesh
..... Petitioner
Versus
1.State of Jharkhand, through the Secretary, Commercial Taxes Department,
having its office at Project Bhawan, HEC Dhurwa, P.O.-Dhurwa,
P.S.Jagannathpur, District-Ranchi.
2.Commissioner of Commercial Taxes, having its office Project Bhawan, HEC
Dhurwa, P.O.-Dhurwa, P.S.Jagannathpur, District-Ranchi.
3.Joint Commissioner of Commercial Taxes (Appeal), Jamshedpur Division,
having its office at Sales Tax Office, Sakchi, P.O. & P.S. Sakchi, Town-
Jamshedpur, District-Singhbhum East.
4.Assistant Commissioner of Commercial Taxes, Urban Circle, Jamshedpur,
having its office at Sales Tax Office, Sakchi, P.O. & P.S. Sakchi, Town-
Jamshedpur, District-Singhbhum East.
5.State Tax Officer, Urban Circle, Jamshedpur, , having its office at Sales Tax
Office, Sakchi, P.O. & P.S. Sakchi, Town-Jamshedpur, District-Singhbhum
East. ..... Respondents
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CORAM : HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Salona Mittal, Advocate
For the Respondents : Mrs. Darshana Poddar Mishra, AAG-I
---------
07/31.03.2023 Heard learned counsel for the parties.
2. The instant writ application has been preferred for following
reliefs:-
(i) For the issuance of an appropriate writ/order/direction including a writ in
the nature of certiorari, quashing and setting aside the order dated
07.06.2022 (Annexure-8) passed by the Learned Commercial Taxes Tribunal,
Jharkhand at Ranchi in JR 47 of 2020 (A.Y. 2014-15-VAT Proceedings)
dismissing the revision application filed by the petitioner, especially since the
Learned Tribunal has failed to appreciate the impact of the regular
assessment order on the penalty imposed before assessment.
(ii) For the issuance of an appropriate writ/order/direction including a writ
in the nature of certiorari, quashing and setting aside the order dated
24.07.2019 (Annexure-4) passed by the Learned Commissioner of
Commercial Taxes in Revision Case No. CC(S) 460 of 2016 by which the
revision petition has been dismissed in a summary manner.
(iii) For the issuance of an appropriate writ/order/direction including a writ
in the nature of certiorari, quashing and setting aside the order dated
29.04.2016 (Annexure-3) passed by the Joint Commissioner of Commercial
Taxes (Appeals), Jamshedpur Division, in JU-VAT-A-37/2015-16 by which
the appeal filed by the petitioner has been dismissed on a misinterpretation
of section 40 (2) of the JVAT Act.
(iv) For the issuance of an appropriate writ/order/direction including a writ
in the nature of certiorari, quashing and setting aside the order dated
28.08.2015 (Annexure-2) passed by the Assistant Commissioner of
Commercial Taxes, Urban Circle, Jamshedpur, and the consequential
demand notice (Annexure-2/1), wherein penalty of Rs.1,97,930/- under
section 40(2) of the JVAT Act has been levied on the petitioner.
3. Brief facts of the case as it appears from the averments of the writ
application is that the petitioner is primarily engaged in performing civil
contract jobs for various Government Departments. For the work done by the
Petitioner, the final bills are prepared by the said Government Department
itself after taking into account the measurements and quantity of work done.
Tax is deducted at source by such Department at the time of making
payment. As and when the Petitioner receives the bills prepared by the
Department and the Tax Deducted at Source ("TDS") certificate, it files its
monthly return.
During the relevant assessment year, i.e., 2014-15, the Petitioner had
filed its monthly returns only for the months of July and October 2014
declaring its turnover to be Rs.3,50,783/- and Rs.5,50,504/- respectively.
Monthly return for the month of March, 2015 was filed on 27.4.2015 as NIL
return since no bill / TDS certificate had been issued by the Government
Department till such date. Thus, the Petitioner had filed the following
monthly returns during A.Y, 2014-15.
Month Turnover
July 2014 Rs.3,50,783/-
October, 2014 Rs.5,50,504/-
March 2015 Nil
Total Rs.9,01,287/-
On 01.07.2015, the Executive Engineer, Rural Development
Special Division, Jamshedpur, issued a TDS certificate to the
Petitioner on the basis of bill prepared by the Department for the
month of March 2015 amounting to Rs.6,73,233/-. Petitioner filed its
revised return for the month of March, 2015 on 5.8.2015 declaring its
turnover for the said month to be Rs.6,73,233/-. After the filing of the
revised turnover for the month of March 2015, the Petitioner's gross
turnover for A.Y. 2014-15 amounted to Rs.15,74,250/- as explained
herein below:
Month Turnover
July, 2014 Rs.3,50,783/-
October, 2014 Rs.5,50,504/-
March, 2015 Rs.6,73,233/-
Total Rs.15,74,520/-
On 28.08.2015, penalty order was passed under Section 40(2)
of the JVAT Act. The Respondents have notionally calculated tax on
the concealed turnover @ 14% to be Rs.65,976/-. Consequently,
penalty of Rs.1,97,930/- was levied being three times the tax on the
concealed turnover. Thus, demand notice of only the penalty amount
was issued. On 29.04.2016, appellate order was passed dismissing
the appeal of the Petitioner. On 7.3.2018 regular assessment order
was passed for the year 2014 - 15 wherein -
(i) The revised return for the month of March 2015 was
accepted.
(ii) A specific finding has been given that no tax evasion has
been committed by the Petitioner.
On 24.7.2019, order was passed by the Ld. Commissioner of
Commercial Taxes, dismissing the revision filed by the Petitioner.
Petitioner approached the Ld. Commercial Taxes Tribunal in revision.
The revision petition was numbered as JR 47 of 2020. Written notes
were filed before the Ld. Tribunal wherein the factum of passing of
the regular assessment order was brought before the Tribunal.
On 7.6.2022, order was passed by the Ld. Tribunal dismissing
the revision filed by the Petitioner.
4. Mr. Salona Mittal, learned counsel for the petitioner in crux had
made following submission: -
(a) Violation of Rule 14(7), if any, does not lead to any
concealment
With regards to the above contention, learned counsel submits
that mere violation of Rule 14(7) does not lead to an inference of
suppression / concealment as required under Section 40(2) of the JVAT
Act. In order to bring the Petitioner within the purview of Section 40(2),
the Department ought to have established the mens rea of the Petitioner to
defraud the revenue by concealing / suppressing the figures in its returns.
In this regard he relied upon the judgment of the Hon'ble Rajasthan High
Court in the case Murari Lal Ahuja & Sons vs. Board of Rev., reported in
1985 SCC OnLine Raj 318.
He contended that merely because the Petitioner revised its return after
receipt of information by the department, cannot take away from the fact
that the correct disclosure was made by it in the revised returns (much prior
to the assessment). In this regard he relied upon the judgment of the
Hon"ble Madras High Court in the case of state of Tamil Nadu v. Lucky
Rasi Radio House, reported in 1995 SCC OnLine Mad 804.
(b) Rule 14(7) of the JVAT Rules is not attracted in any event in
the facts and circumstances of the case.
In support of the above contention learned counsel submits that Rule
14(7) is only attracted when the revision of returns is 'as a result of some
receipt of information by the Department. Thus, the revision of the returns
must be suo moto and not as a consequence of some action taken by the
Department. In the present case, the revision of the Petitioner's return is
based on the TDS certificate which it received by the Contractor for the
month of March 2015, in the first week of July 2015. It is these figures that
have been reflected in the revised return and not the figure alleged by the
Department to have been received by the Petitioner. Thus, the Petitioner did
not, in fact, act upon the action initiated by the Department, but on its own
volition.
(c) Basis of levy of penalty does not exist in the instant case.
Learned counsel submits that the only ground on which the penalty has
been imposed upon the Petitioner is that its revised return has been held to
be non-acceptable. However, the entire basis of the Respondent's case has
ceased to exist because of the fact that the Petitioner's revised returns have
been accepted in the regular assessment proceedings. In the regular
assessment proceedings, it has been categorically held that:-
(i) The revised returns for the month of March 2015 is accepted as
there was some error in the original return.
(ii) No evidence of tax evasion was found against the Petitioner.
Having accepted the revised returns for the month of March
2015, the entire basis for levy of penalty under Section 40(2) had gone. The
passing of the regular assessment order was brought to the notice of the
Tribunal (since this arose subsequent to the passing of the penalty order).
The Ld. Tribunal, being the last fact-finding authority ought to have
appreciated the fact that the very basis for levying the penalty order has
since subsequently ceased to exist. However, the Ld. Tribunal refused to go
into the regular assessment order.
(d) Section 40(2) is only provisional in nature and needs a
concluded assessment order to rectify it.
Learned counsel lastly submits that Section 40 of the JVAT Act
deals with matters of "Turnover escaping assessment". This includes both
Section 40(1) and 40(2). While Section 40(1) deals with matters after
assessment proceedings are concluded, Section 40(2) deals with cases
before assessment. However, since Section 40(2) of the Act also comes
under the heading of "turnover escaping assessment", it is necessary that a
penalty order must depend upon a final order of assessment. Thus, the
computation of penalty under Section 40(2) of the Act is only on a notional
basis. Unless and until, the regular assessment proceeding concludes, and it
is held that the turnover has escaped assessment, it cannot be said that the
case of the Petitioner would come under Section 40 of the Acr. Leaving
penalty to be levied before assessment at hands of the Department, without
it being subjected to any sort of checks and balances by the final assessment
order, would give unfettered power to the Department to levy penalty on
any sort of information, even if such information is discredited later. It is
therefore submitted that the present writ petition ought to be allowed and the
penalty order, the appellate order and the revision orders be quashed and set
aside.
5. Learned counsel for the petitioner in support of his submissions heavily
relied upon the recent judgment passed by this Court in W.P.(T) 3957 of
2022 in the case of M/s Shiv Jyoti Enterprises JV Binod Kumar Lal @
Shiv Jyoti Enterprises Vs. The State of Jharkhand & Ors. and contended
that this Court has categorically held that there is no dispute that before
assessment proceeding under Section 40(2) of the JVAT Act and regular
proceeding under Section 35 of JVAT Act are mutually exclusive to each
other. However, acceptance of GTO and revised quarterly return in the
original assessment proceeding could not be totally brushed aside when the
sole issue revolves around revision of return by the petitioner-company. He
further referred paragraph Nos.10-13 which is quoted herein below:-
"10. Having heard learned counsel for the parties and after going
through the documents available on record and the averments made in
the respective affidavits, it transpires that the primary dispute involved
in the instant writ application pertains to imposition of penalty under
Section 40(2) of the JVAT Act on the alleged ground of concealment of
purchases for an amount of Rs.1,55,69,332/- made by the Petitioner
despite the fact that the said amount was duly reflected in its revised
return. The petitioner has annexed the entire order-sheet pertaining to
penalty proceeding for the period in dispute to demonstrate that order
was passed without granting sufficient opportunity to the Petitioner.
Admittedly, for the quarter ending September, 2015, the last date
for filing of revised return was up-to January, 2016. However, before
assessment proceeding was initiated on 09.01.2016 i.e., before the
expiry of period of revising of return in dispute which would be itself
evident from the penalty order dated 02.02.2016 at Annexure-1. Further,
the Petitioner, for the purchases in dispute has utilized Form SUGAM-G
and, thus, no occasion arose for suppression of any turnover with intent
to evade payment of tax. In the entire Counter Affidavit no mens-rea has
been alleged by Respondent-authorities. Thus, it appears that the
contention of the petitioner that at best penalty under Section 30(4)(d) of
the JVAT Act could have been imposed upon petitioner is correct. This
specific plea of Petitioner is uncontroverted by Respondent-authorities.
For brevity both Section 40(2) and section 30(4) of the JVAT Act
is extracted herein below for proper appreciation of the lis:-
"40. Turnover escaping Assessment --
.............
(2) If the prescribed authority in the course of any proceeding
or upon any information, which has come into his possession
before assessment or otherwise, under this Act, and is satisfied
that any registered dealer or a dealer to whom the registration
certificate has been suspended under sub-section (7) of Section
25 -
(a) has concealed any sales or purchases or any particulars
thereof, with a view to reduce the amount of tax payable by him
under this Act, or
(b) has furnished incorrect statement of his turnover or
incorrect particulars of his sales or purchases in the return
furnished under sub-section (1) of Section 29; or otherwise,
the prescribed authority shall, after giving such a dealer an
opportunity of being heard, by an order in writing direct that he
shall, in addition to any tax payable which is or may be
assessed under Section 35 or 36 or 38, pay [by way of penalty a
sum equal to thrice the amount of tax on the concealed turnover
or on concealed or incorrect particulars of suppression or
concealment or for furnishing incorrect particulars; on the
amount of tax payable under the Act or on the suppressed
turnover or on concealed turnover or for furnishing incorrect
particulars.
The interest shall be payable before the completion of
the assessment and for determining the amount of interest
payable, the prescribed authority shall quantify the amount of
tax payable provisionally under this Act.'"
"30. Return Defaults --
.................
................
(4) If a registered dealer or any other dealer required to
furnish return under sub-section (1) and sub-section (2) of
Section 29; without any sufficient cause.
(a) fails to comply with the requirements of the notice issued
under sub-Section (2) of Section 29; or.
(b) fails to furnish any return by the prescribed date as required
under [sub- Section (1) or sub-Section (2) of Section 29; or
(c) being required to furnish revised return, fails to furnish the
revised return by the date prescribed under sub-Section (3) of
Section 29;
(d) the prescribed authority shall, after giving such a dealer an
opportunity of being heard in the manner prescribed, impose a
penalty of the rate not exceeding rupees fifty for every day of
such default for any month or any tax period, subject to a
maximum of rupees twenty five-thousand in a year.
Explanation - Return for this purpose shall mean and include
the Monthly Abstract. Return for any tax period, Revised
Return(s) as well as the Annual Return.]"
11. There is no dispute with respect to the fact that before
assessment proceeding under Section 40(2) of the JVAT Act and regular
assessment proceeding under Section 35 of the JVAT Act are mutually
exclusive to each other. However, acceptance of GTO and revised
quarterly return in the original assessment proceeding could not be
totally brushed aside when the sole issue revolves around revision of
return by the Petitioner-company.
It is also not in dispute that the alleged revised return has duly
been accepted by the Respondent-authorities in the original assessment
proceeding of the Petitioner. Thus, on one hand, by accepting return and
turnover of Petitioner, the Respondents have determined tax liability in
the original assessment proceeding and on the other hand Respondents
have disputed the revised quarterly return and levied penalty under
Section 40(2) of the JVAT Act.
Further, revision of return can be allowed even after expiry of
time period prescribed and time period prescribed for revision of returns
is directory and not mandatory. In this regard, reference may be made to
the section 30 (4) (d) of the JVAT Act itself where the legislature has
specifically mentioned that if a registered dealer or any other dealer
required to furnish return under sub-section (1) and sub-section (2) of
Section 29; without any sufficient cause; the prescribed authority shall,
after giving such a dealer an opportunity of being heard in the manner
prescribed, impose a penalty of the rate not exceeding rupees fifty for
every day of such default for any month or any tax period, subject to a
maximum of rupees twenty five-thousand in a year.
12. It further transpires from records that the purchases were made
on the strength of Form SUGAM-G (Annexure-1 Series), and, therefore,
no occasion arises for suppression of any purchases with an intent to
evade the payment of tax otherwise. As a matter of fact, Petitioner would
not have utilized SUGAM-G for the purchases of goods in question.
Admittedly, the present dispute did not pertain to filing of
incorrect return with intention to suppress or conceal purchases; rather
the dispute pertains to filing of revised return belatedly. Thus, the
imposition of penalty under Section 40(2) of the JVAT Act upon
Petitioner is not sustainable in the eye of law and if the justification of
the Respondents in this regard is accepted then the provision of Section
30 more particularly; sub-section 4 would be rendered otiose.
In the given facts and circumstances and in view of specific
provision enshrined u/s 30(4) (d) of the Act, it is apparent that there is
no deliberate act of evasion of tax which would be warranting
imposition of penalty on the petitioner given the language used in
Section 40(2) containing the penal provision. In fact it cannot be said to
be an act of deliberately filing incorrect returns as the revised return has
been duly accepted by the Assessing Officer. Reference in this regard
may be made the judgment passed in the case of Commissioner of Sales
Tax, U.P. V. Sanjeev Fabrics reported in (2010) 9 SCC 630 wherein the
Hon'ble Apex Court has laid down the law at para-24, 25 & 30 as
under:-
24. Whether an offence can be said to have been committed
without the necessary mens rea is a vexed question. However,
the broad principle applied by the courts to answer the said
question is that there is a presumption that mens rea is an
essential ingredient in every offence but the presumption is
liable to be displaced either by the words of the statute creating
the offence or by the subject-matter with which it deals and both
must be considered.
25. Although in relation to the taxing statutes, this Court
has, on various occasions, examined the requirement of mens
rea but it has not been possible to evolve an abstract principle
of law which could be applied to determine the question. As
already stated, answer to the question depends on the object of
the statute and the language employed in the provision of the
statute creating the offence. There is no gainsaying that a penal
provision has to be strictly construed on its own language.
30. To put it succinctly, in examining whether mens rea is
an essential element of an offence created under a taxing
statute, regard must be had to the following factors:
(i) the object and scheme of the statute;
(ii) the language of the section; and
(iii) the nature of penalty.
13 Having regards to the discussion made hereinabove, this court
holds that the penalty imposed by the revenue u/s 40(2) of the JVAT Act
is not sustainable in the facts and circumstances of this case rather;
penalty under Section 30(4)(d) of the JVAT Act could have been imposed
upon Petitioner."
Relying upon the aforesaid submission learned counsel prays for
setting aside the order impugned.
6. Per-contra Mrs. Darshana Poddar Mishra, learned AAG-I opposed the
contention of the petitioner and submits that the instant case is not of filing
of revised returns but it is a case of concealment which would transpire from
the facts of the case. She further submits that it is a settled principle that the
petitioner cannot revise its return under the provisions of Section 29(3) of
JVAT Act 2005 after the expiry of period i.e. three months from the date as
prescribed under Rule 14(1) and 14(3) of JVAT Rules, 2006. She contended
that the petitioner company cannot be exonerated if he files a revised return
after initiation of proceeding under Section 40(2) of the Act that too when it
was duly communicated to the petitioner before filing of the revised return.
As a matter of fact, the action of the petitioner company of filing
revised return is not bona-fide. She further draws attention of this Court
towards the facts and dates which are important in the instant application.
She contended that the judgment relied upon by the petitioner in the case of
M/S Shiv Jyoti Enterprises (supra) is not applicable in the instant case,
inasmuch as the facts are not similar.
She lastly submits that Rule 14(7) of JVAT Rules, 2006 is squarely
applicable in the instant case, inasmuch as, the petitioner has filed the
revised return after the notice given by the department. She lastly submits
that on the one hand the judgment passed by this Court in Shiv Jyoti
Enterprises (supra) is not applicable due to different facts and it is also well
settled that mens-rea is not an essential element for imposing penalty for
breach of civil obligation. She relied upon the judgment passed in the case of
Union of India & Ors. Vs. Dharamendra Textile Processors & Ors.
reported in (2008) 13 SCC 369.
7. Having heard learned counsel for the parties and after going through the
documents available on records and the averments made in the respective
affidavits it appears that on 27.4.2015 the petitioner filed NIL Returns for the
month of March though before that on 30.3.2015 itself it had raised a bill for
Rs 6,73,233/- and this fact finds mention in the order dated 29.4.2016 of the
Appellate Court and nowhere denied by the petitioner. Further, since the
petitioner was aware of having raised bill of Rs 6,73,233/-, there was no
occasion for the petitioner to file returns for the month of March, 2015
showing it be NIL returns. This filing of NIL returns itself is self- sufficient
to make out a case under Section 40(2)(b) of the JVAT Act, 2005.
The petitioner himself has admitted the fact that it had received the TDS
certificate from the Government on 01.07.2015. Though, the TDS certificate
was received by the petitioner on 01.07.2015 but he did not revise the returns
for the month of March, 2015 on any day prior to 30.07.2015. If the same
would have been revised on any day prior to 30.07.2015; then the proceeding
under Section 40(2) of the Act would not have been initiated; rather the
conduct of petitioner in not revising the returns despite admittedly having
received the TDS certificate from the government on 01.07.2015, appears to
be indicative of the mens- rea of the petitioner
The proceeding u/s 40(2) was initiated on 30.07.2015 and notice was
issued to the petitioner. Thereafter, the returns were revised only after
initiation of the proceeding and issuance of notice to the petitioner and
therefore, any attempt to revise the returns after the initiation of proceeding
will be hit by the mischief of rule 14(7) of JVAT Rules, 2006.
By going through the impugned judgment, it appears that the learned
Tribunal which is the final fact-finding authority had dealt this issue in
detail. The relevant part of the order dated 7.6.2022 (Annexure-8) is quoted
hereinbelow for ready reference: -
" 5........... Claim of the Department was that on the basis of some
information received from the department it transpired that the
petitioner had suppressed certain turnovers amounting to
Rs.6,73,233/-. Notice was issued to the petitioner as to why a penalty
order under section 40(2) be not passed against him. LCR was called
for and on a perusal of the LCR it transpires that the proceeding
under section 40(2) was initiated on 30.7.2015 and the next date
fixed in the case was 08.08.2015. Order-sheet dated 08.08.2015
shows that the notice which was ordered to be sent on 30.07.2015
was sent through e-mail and the order sheet also says that copy of
the said service of notice is there on the record. The same is also
available in the Lower Court Record. The petitioner pursuant to the
notice appeared before the tribunal and has acknowledged to have
received the notice sent to the petitioner. However, in the said reply,
the petitioner has stated to have filed all the returns on time. It is not
in dispute that the return for the month of March, 2015 which was of
an amount of Rs 6,73,233/- was initially filed as NIL returns and
subsequently was revised on 05.08.2015, it is reiterated that the
proceedings under the 40(2) of the JVAT Act, 2005 was initiated on
30.07.2015. Thus, the revising of the returns was done after the
initiation of the proceeding under section 40(2) of the JVAT Act,
2005 and this tribunal is considered that the mischief of rule 14 (7) of
the JVAT Rules, 2006 will come into play and the revising of returns
will not be a hindrance to the proceeding under section 40(2) of the
JVAT Act, 2005. Thus, the revising of the returns after initiation of
proceeding under Section 40(2) of the JVAT Act, 2005 is of no avail
to the Petitioner."
Moreover, the petitioner has stated at paragraph 15 of the writ
petition that "On such basis proceedings under section 40(2) were
initiated and a notice was allegedly served to the Petitioner on
30.7.2015. It is submitted that the petitioner is not in possession of
such letter dated 30.7.2015."
8. It further transpires that since notice initiating proceedings u/s
40(2) of the JVAT Act was served on the petitioner and the same
has not been denied, it can be inferred that the fact that the
proceedings had been initiated u/s 40(2) was well within the
knowledge of the petitioner and therefore to circumvent the
proceedings-initiated u/s 40(2), the revised Returns were filed by
the petitioner on 5.8.2015.
Thus, it can be concluded that in the instant case the action of the
tax authorities is well within the four corners of law. Section 40(2) of the
Act that is meant for the turnover escaping assessment, before
assessment. Therefore, for quantification of the penalty, the tax has
to be assessed provisionally. The word "provisionally" used in the
said section has to be read for calculation of tax to quantify the
amount of penalty and is NOT subject to final assessment.
9. We further observe that if the intent of the legislature been to
assess the tax provisionally under the said section which would be
"subject to the final assessment", the said intent would have been
reflected through the said section. However, on plain reading of
the said section, no such intent can be inferred and the said section
is clear and unambiguous. It further transpires that the penalty
proceedings under section 40(2) is an independent proceeding
which is carried out before assessment of the assessee and has no
bearing with the regular assessment u/s 35 etc.
Further, Section 40(2) states that if the prescribed authority in
the course of any proceeding or upon any information, which has
come into his possession before assessment is satisfied that any
registered dealer has concealed any sales or purchases or any
particulars thereof, with a view to reduce the amount of tax
payable by him under this Act, or has furnished incorrect statement
of his turnover or incorrect particulars of his sales or purchases in
the return furnished under sub-section (1) of Section 29; or
otherwise, it could initiate penalty proceedings.
In the instant case when "information" regarding excess
turnover than what was disclosed by the petitioner came into the
possession of the prescribed authority and that petitioner has not
disclosed the Turnover of March, 2014 inspite of having full
knowledge, concealed the same in the Returns filed by him and
thereby furnished incorrect particulars, the prescribed authority
rightly initiated the penalty proceedings and issued notice upon the
petitioner.
10. Further, at the cost of repetition it is to be noted that the
petitioner has revised his Returns only after the information
received by the prescribed authority and initiation of proceedings
u/s 40(2), therefore the filing of revised his Returns after initiation
of the proceedings u/s 40(2) was apparently done to circumvent the
said proceedings. The Revised Returns which were later accepted
by the Department cannot be a ground to absolve the petitioner
from his liability to pay penalty u/s 40(2) which was rightly
initiated against him.
11. Mr. Salona Mittal, learned counsel for the petitioner has
heavily relied upon the decision of M/s Shiv Jyoti Enterprises
(Supra) and contended that the present case is covered by the said
decision as this court has likewise held that acceptance of GTO
and revised quarterly return in the original assessment proceeding
could not be brushed aside and there was no mala-fide on behalf of
the petitioner.
At this stage it is pertinent to see the facts which are
distinguishable in nature. In the case of Shiv Jyoti (Supra) for the
quarter ending September, 2015 the last date for filing revised
return was of up to January, 2016. However, before that the
assessment proceeding was initiated on 09.01.2016 i.e, before the
expiry of the period of revising the return in dispute which would
be itself evident from the penalty order dated 02.02.2016. This
clearly goes to show that the proceeding in the said case was
initiated even prior to the period of filing revised return.
However, in the instant case, the actual turnover was shown as
NIL for March 2015 in the return filed on 27.04.2015 in-spite of
the fact that the petitioner had raised bill for the amount of
Rs.6,73,233 on 30.3.2015 itself. Further though TDS certificate
was received by the petitioner on 1.7.2015 but Returns were not
revised till 30.7.2015 when proceedings u/s 40(2) was initiated.
Thus, the intent to evade tax or conceal/suppress turnover appears
to be clear indicative of mens rea on his part. As a matter of fact,
after the proceeding under section 40(2) of the JVAT Act was
initiated and the notice was served to the petitioner he filed the
return on 05.08.2015 i.e., after the period of three months for filing
revised return. There is no document on record to suggest or any
averments giving reason for non-filing of revised return within
time. As such, the element of mens rea on the part of the petitioner
is also made out.
All these facts of the instant case make it distinguishable from
the case of Shiv Jyoti (supra) and other relied upon judgments by
the petitioner.
12. We are also inclined to agree with contention of the learned
AAG-I relying on Rule 14(7) of the JVAT Rules which says that
revised return can be filed by the assesse if he finds that there is
any omission or in correct information therein other than as a result
of an inspection or receipt of any other information or evidence by
the authority prescribed, as the revised return of the petitioner was
filed only after getting the notice for proceeding under section 40
(2) of the JVAT Rules.
13. The fact of the instant case as enunciated herein before clearly
shows absence of bona-fide on the part of the petitioner in not
filing the revised return even after getting the TDS certificate as he
filed the revised return only on 05.08.2015 after initiation of
proceeding under section 40(2) of the JVAT Act on 30.07.2015. It
is thus clear that the instant case does not fall under section 30
(4)(d); rather is covered by the condition prescribed under Rule
14(7) of the JVAT Rules. As such the action of the respondent
revenue authority is fully justified; no error has been committed by
the learned Tribunal by rejecting the revision petition of the
petitioner.
Consequently, the instant writ application is dismissed.
(Aparesh Kumar Singh, J.)
(Deepak Roshan, J.)
Fahim/Amardeep/
