Sl Automobiles Private Limited vs The State Of Tripura
2023 Latest Caselaw 208 Tri

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                HIGH COURT OF TRIPURA
                      AGARTALA
                     W.P.(C) 694/2021
SL Automobiles Private Limited, A company incorporated under the
provisions of the Companies Act, 1956 having its registered office at
Reshambagan, Khayerpur, Assam-Agartala Road, Agartala, West Tripura-
799008 and in the present proceedings represented by Sri Manish Agarwal,
the Managing Director of the petitioner company.
                                                              ---- Petitioner
            Versus
1. The State of Tripura, represented by the Chief Secretary, Government of
Tripura, Agartala, New Civil Secretariat, P.O. Kunjaban, P.S. New Capital
Complex (NCC), District- West Tripura, PIN- 799006.
2. The Principal Secretary, Finance Department, Government of Tripura,
Agartala, New Civil Secretariat, P.O. Kunjaban, P.S. New Capital complex
(NCC), District- West Tripura, Pin- 799006.
3. The Commissioner of Taxes & Excise, Government of Tripura, 3rd
Floor, Khadya Bhawan, P.N. Complex, Gurkhabasti, Agartala, District-
West Tripura, Pin-799006.
4. The Superintendent of State Taxes, Agartala, Agartala Enforcement
Wing-I, Agartala, Tripura (West), 799001.
5. The Additional Commissioner of State Taxes, Government of Tripura,
Khadya Bhawan, P.N. Complex, Gurkhabasti, Agartala, District- West
Tripura, Pin- 799006.
                                                             ----Respondents

For Petitioner(s) : Dr. Ashok Saraf, Sr. Advocate Mr. P. Baruah, Advocate Mr. Kousik Roy, Advocate For Respondent(s) : Mr. K. Dey, Additional GA Date of hearing and delivery : 14.03.2023 of Judgment & Order Whether fit for reporting : Yes / No Page 2

HON'BLE THE CHIEF JUSTICE (ACTING) HON'BLE MR. JUSTICE ARINDAM LODH Judgment & Order (Oral) 14/03/2023 (T. Amarnath Goud, ACJ)

Heard Mr. Ashok Saraf, learned senior counsel assisted by Mr. P.

Baruah, learned counsel and Mr. Kousik Roy, learned counsel appearing for

the petitioner as well as Mr. K. Dey, learned Additional GA, appearing on

behalf of the respondents.

2. By means of filing this writ petition, the petitioner has challenged the

"authorization for inspection and search" dated 25.06.2021 issued by the

Additional Commissioner of State Taxes, Tripura, respondent no. 5, herein

as well as subsequent order of seizure and order of prohibition, dated

25.06.2221 issued by the Superintendent of State Taxes, Agartala,

Enforcement Wing-I, Agartala, respondent no. 4 herein, and also challenged

the "intimation of tax ascertained as being payable" dated 25.08.2021,

issued by the Superintendent of State Taxes, respondent no. 4 herein,

advising the petitioner to pay an amount of Rs. 1,28,37,517/- on account of

tax as ascertained alongwith applicable interest and penalty.

3. Briefly stated, the petitioner is a dealer of Honda motorcars having its

head office at Guwahati and a branch office at Agartala. Upon an order

placed by a local customer for delivery of the car, the petitioner sent the

vehicle from Guwahati to Agartala by way of a branch transfer but upon

payment of full IGST. The State GST authorities, however, hold the belief

that not IGST but CGST and SGST were payable since this is an incident of Page 3

local sale. Under a memo dated 25.06.2021 (Annexure V and VI to this writ

petition), the Superintendent of State Tax seized the three motorcars which

were lying in the showroom of the petitioner at Agartala. The

Superintendent of State Tax, on 25.08.2021 (Annexure XIII to this writ

petition) issued a notice under Section 74(1) of the CGST Act and passed an

intimation/order asking the petitioner to pay a sum of Rs.1,28,37,517/- by

way of unpaid CGST and SGST with interest and penalty. These orders of

attachment and assessment the petitioner has challenged in this petition.

4. During arguments, Dr. Saraf, learned senior counsel appearing for the

petitioner has argued that the case of the petitioner is of inter-state sale and

the petitioner was bound only to pay IGST from which the State would

receive its share or revenue. Learned senior counsel has also argued that

there cannot be double taxation. Learned senior counsel has further

submitted that seizing of the vehicles of the petitioner and directing him to

may payment of Rs. 1,28,37,517/- alongwith interest and penalty is wholly

illegal and without jurisdiction. Lastly, learned senior counsel has urged this

court to set-aside the memo dated 25.06.2021 (Annexure V and VI to this

writ petition), and also to set-aside the notice dated 25.08.2021 (Annexure

XIII to this writ petition).

5. Learned Additional GA has submitted that the memo dated

25.06.2021 and the notice dated 25.08.2021 passed by the respondents no. 5

and 4 respectively, are not illegal and the same had been passed within the

ambit of law since the petitioner had not discharged his actual tax liability in Page 4

filing Returns. Learned Additional GA has also submitted that the

representative of the petitioner failed to produce any valid document

regarding the mode of business operation of the petitioner. Learned

Additional GA has further submitted that without final outcome of the

proceeding initiated by the respondent no. 4, the petitioner has filed the

instant writ petition, and accordingly, the instant writ petition is at its

premature stage.

6. Considered the submission of learned counsel appearing for the

parties. We have also perused the record.

7. Annexure XIII to this writ petition is intimation of tax ascertained as

being payable under Section 73(5)/74(5) whereby the respondent no. 4 had

advised the petitioner to pay the amount of tax as ascertained alongwith

amount of applicable interest and penalty and requested the petitioner to file

any submission if he desire against the said ascertainment in Part B of this

Form within 21.09.2021. The said Annexure XIII which is Form GST DRC-

01A is reproduced here-in-below:

"FORM GST DRC-01A Intimation of tax ascertained as being payable under Section 73(5)/74(5) [See Rule 142(1A)] Part A No. F.12/TAX/ST/GSTIN-16AAWCS7754G1ZM/AGT/ENFW/479 Date: 25/08/2021 Case ID No.:

To, GSTIN-16AAWCS7754G1ZM Name: S L AUTOMOBILES PRIVATE LIMITED Address: Resham Bagan, Khayerpur, West Tripura, Pin. 799008 Sub: Case Proceeding Reference No. F.12/TAX/ST/GSTIN-16AAWCS7754G1ZM/ AGT/ ENFW/ 468, Dated 06-08-2021- Intimation of liability under Section 74(5)-reg. Please refer to the above proceedings. In this regard, the amount of tax/interest/penalty payable by you under Section 74(5) with reference to the said case as ascertained by the undersigned in terms of the available information as is given below:

Page 5

Act Period Tax CGST Act 2018-19 Rs. 10,14,120.67 2019-20 Rs. 43,13,870.57 2020-21 Rs. 9,48,577.34 2021-22 Rs. 1,30,438.20 SGST/UTGST Act 2018-19 Rs. 10,14,120.67 2019-20 Rs. 43,13,870.57 2020-21 Rs. 9,48,577.34 2021-22 Rs. 1,30,438.20 IGST Act --- ---

      Cess                     2019-20         Rs. 23,503.87
      Total                                    Rs. 1,28,37,517.43

The grounds and quantification are attached/given below: REASONS FOR ASCERTAINING THE TAX AND OTHER AXXOCIATED DUES ARE ATTACHED HEREWITH:

You are hereby advised to pay the amount of tax as ascertained above alongwith the amount of applicable interest and penalty under section 74(5) by 21/09/2021 failing which Show Cause Notice will be issued under Section 74(1). In case you wish to file any submissions against the above ascertainment, the same may be furnished by 21/09/2021 in PART B of this Form."

8. Annexure XIII, dated 25.08.2021, which is under challenge in this writ

petition, clearly shows that if the petitioner fails to submit any response/reply

to the liability intimated under Section 73(5) of the Act to this writ petition in

Part-B within the time stipulated, in that case, Show-Cause notice will be

issued against the petitioner. Thus, it is aptly clear that Annexure XII (dated

25.08.2021) is not a show-cause notice, which the petitioner prays to quash in

this writ petition. Moreover, the proceeding initiated by the respondent no. 4

against the petitioner is pending and without any outcome of the proceeding,

the petitioner had approached this court.

9. In view of the above submission and the records in its entirety, this

court feels that the present writ petition which is filed by the petitioner is at

the pre-mature stage, and accordingly, the same is dismissed giving liberty to

the petitioner to approach the appropriate forum. The petitioner has expressed

that the petitioner has already paid the taxes, and he is not liable to pay any Page 6

further tax and with regard to the consideration, the tax authorities have not

considered in its entirety. In this regard, the petitioner expresses that the

demand made for Rs. 1,28,37,517.43 is not payable, and in that event if he

prefers an appeal under the statute, 50% of the same needs to be paid which

could again burden the petitioner. Having concerned to the submission made

by the petitioner, this court makes it open to the petitioner to file an

appropriate application seeking dispensing of the same, and if such an

application is filed, it is open for the revisional authority to consider the case

of the petitioner in accordance with law.

10. In the circumstances aforesaid we hold that the writ petition is

premature and not maintainable, and therefore, stands dismissed.

Pending application(s), if any, also stands disposed.

           JUDGE                                  CHIEF JUSTICE (ACTING)




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