M/S Gemini Distilleries ... vs The State Of Tripura
2023 Latest Caselaw 356 Tri

                  HIGH COURT OF TRIPURA
                        AGARTALA
                       W.P.(C) 549/2022
M/S Gemini Distilleries (Tripura) Pvt. Ltd.
Having its registered office at:- Industrial Growth Centre, Khayerpur,
Agartala, West Tripura, 799008. CIN-U15520TR1999PTC013559,
represented by its General Manager (Operation) and Authorized Signatory
Shri Nawal Mishra, S/o Shri Yugeshwar Mishra
                                                               .....Petitioner
       -VERSUS-
1.     The State of Tripura, represented by the Secretary, Government of
Tripura, Department of Finance, Civil Secretariat, P.O. Agartala Secretariat,
District- West Tripura, PIN-799010.
2.     The Superintendent of Taxes, Government of Tripura, Charge VIII,
Kar Bhawan, Palace Compound, Agartala, West Tripura, PIN- 799001.
                                                             ....Respondents

For Appellant (s) : Mr. SM Chakraborty, Sr. Advocate Ms. A. Pal, Advocate, Advocate For Respondent(s) : Mr. D. Bhattacharjee, GA Mrs. NC Saha, Advocate Date of hearing & delivery of judgment & order : 02.05.2022 Whether fit for reporting : Yes

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH HON'BLE MR. JUSTICE ARINDAM LODH Judgment & Order (ORAL) Heard learned counsel for the parties.

2. The writ petitioner is aggrieved by the penalty of Rs. 2,73,800.30

imposed under Section 53 of the TVAT Act, 2004, by the impugned order of

assessment dated 30.03.2022 passed by the respondent no. 2, Superintendent

of Taxes, Charge VIII, Agartala, Tripura (W).

3. The instant proceedings were initiated under Section 31(1) of the

TVAT Act, 2004, for the assessment year 2016-17. It is not in dispute that the petitioner's turnover was above Rs. 40 lakhs, and the accounts were to be

audited in terms of Section 53 of the TVAT Act, 2004, but it is the

contention of the petitioner that in the absence of a prescribed format as per

Section 53(1) of the Act, 2004, the petitioner could not be made liable for

penalty on failure to submit the audited report within the prescribed time.

Reliance is placed on a decision of this court in WP(C) 1106 of 2019 and

other analogous writ petitions of the same petitioners [Pankaj Behari Saha

vs. State of Tripura & ors] vide judgment dated 26.04.2021. The other

ground urged by learned senior counsel for the writ petitioner is absence of

notice before imposition of penalty which is in teeth of the provisions of

Section 53(3) of the Act, 2004, and in violation of principles of natural

justice as well.

4. Learned GA for the respondents-State, Mr. D. Bhattacharjee, has at

the outset drawn the attention of this court to the letter dated 15.12.2020

(Annexure A to the counter affidavit) submitted by the Director of the

petitioner-company before the respondent no. 2 regarding submission of

audit reports for the year 2015-16 to 2018-19. It is pointed out from the said

letter that the petitioner did not take any plea of absence of prescribed format

under the Rules for delayed submission of the audited reports for the

relevant assessment years 2015-16 to 2018-19, which includes the present

assessment year in question 2016-17. The petitioner has also not shown that

for previous assessment years such a plea was taken and that no audited

returns were submitted in absence of a prescribed format. However, learned GA has not been able to dispute that the imposition of penalty has been

without any notice or reasonable opportunity to the petitioner-dealer of

being heard. Learned GA has informed that such a format has been

prescribed in the year 2021 vide notification dated 07.12.2021 issued by the

Finance Department, (Taxes and Excise) State of Tripura.

5. Learned senior counsel for the petitioner has in reply pointed out from

the assessment order that the Assessing Officer has clearly recorded that the

company had filed all returns under Section 24 of the TVAT Act, 2004 on

monthly basis but return for the month of April, 2016 was submitted after a

delay of 1 day for the A.Y. 2016-17 (detail in return statement). It is

submitted that had an opportunity been granted to the petitioner by issuing

proper show-cause notice, delay, if any, could have been well explained. He

has summarized the grounds of challenge to violation of principles of natural

justice and absence of prescribed format for filing the audited returns in

terms of Section 53(1) of the Act, 2004. It is further pointed from the

judgment rendered by this court in WP(C) 1106 of 2019, that such plea of

filing of audited report without a prescribed format for the subsequent year

2018-19 in the said case has not been treated as an estoppel being a purely

legal contention. Learned senior counsel for the writ petitioner has

categorically submitted that the petitioner accepts the rest of the assessment

order and is ready to pay the tax liability imposed upon him.

6. Having heard the submissions of learned counsel appearing for the

parties, and having gone through the relevant materials pleaded from the record, we are of the considered view that the penalty imposed upon the

petitioner for violation of Section 53(1) of the TVAT Act, 2004 suffers from

lack of proper notice and absence of reasonable opportunity of being heard,

as is required under Section 53(3) of the Act, 2004. A perusal of the

assessment order clearly shows that the proceedings were initiated under

Section 31(1) of the TVAT Act, 2004, but no separate notice was issued

under section 53(1) of the Act, 2004 before imposition of penalty.

7. As such, without going into the other issue of absence of prescribed

format for submission of audited return in terms of Section 53(1) of the Act,

2004, the impugned penalty imposed upon the petitioner amounting to Rs.

2,73,800.30 vide order dated 30.03.2022 (Annexure 3 to the writ petition) is

quashed. However, it is made clear that except the penalty part, the rest of

the assessment order remains intact. Liberty is granted to the respondent no.

2, to take a fresh decision on the question of imposition of penalty after

proper notice and opportunity of being heard to the petitioner in accordance

with law.

8. The writ petition stands allowed in the manner and to the extent

indicated above.

         (ARINDAM LODH),J                     (APARESH KUMAR SINGH), CJ




Saikat