Calcutta High Court (Appellete Side)
M/S Narsi & Associates vs Sr. Joint Commissioner on 11 September, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1 11.09.2017
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rc W.P. No. 23339 (W) of 2017 M/s Narsi & Associates Versus Sr. Joint Commissioner, Commercial Taxes & Ors.
Mr. Vinay Saraf
Mr. Nikhil Berlia ... For the Petitioner
Mr.Abhrotosh Majumder
Mr. S. Mukherjee
Mr. Debasish Ghosh .. For the State
A notice under section 9 of the Central Sales Tax Act, 1956 read with section 46 of the West Bengal Value Added Tax Act, 2003 (hereinafter referred to as "the said Act of 2003") dated September 11, 2017 is under challenge in the present writ petition.
Learned advocate for the petitioner submits that, the impugned notice is not in consonance with section 46 of the said Act of 2003. He submits that section 46 specifies the grounds where the Commissioner is entitled to issue a notice for assessment. He draws attention of the Court to section 46(1)(b) and submits that the Commissioner must be prima facie satisfied that there has been a short payment of net tax or excess claim of input tax credit by the dealer or that the State Government has suffered loss of revenue or for any other reasons to be recorded in writing including for the purpose of refund of tax. He submits that, the other reasons must be read as ejusdem generis to the first three grounds given in the sub‐section. The other reason will take the colour from the earlier three grounds. He refers to section 22(6) of the said Act of 2003 and submits that, if the Input Tax Credit or Input Tax Rebate available to a registered dealer for a year exceeds the Output Tax for that year the excess Input Tax Credit or Input Tax Rebate shall be brought forward to the next year. He submits that, the case of the petitioner falls under section 2 22(6) of the said Act of 2003. Therefore, there was no material before the Commissioner to invoke section 46 of the said Act of 2003.
The Revenue Authority is represented by the Additional Advocate General. He draws the attention of the Court to various grounds taken in the writ petition. He submits that, in ground no. II the petitioner claims to have acquired a right to have the returns accepted in its entirety. He submits that, such a right does not enure to an assessee under the provisions of the said Act of 2003. The officer exercising jurisdiction under the said Act of 2003 is entitled to consider and assess a return in accordance with law. In the present case, the Commissioner prima facie finds that the excess Input Tax Credit over Rs. 5.00 lacs have been carried forward for the next financial year by the assessee. The authorities have called for an explanation from the assessee through the impugned order. The assessee is obliged to give the explanation. It is for the authorities to consider such explanation given and to take a decision in that regard. At this stage the writ court should not intervene.
I have considered the rival contentions of the parties and the materials made available on record.
As noted above, a notice dated September 11, 2017 issued under section 46 of the said Act of 2003 is under challenge. The notice specify that, for the assessment period from April 01, 2015 to March 31, 2016, the petitioner has taken an excess Input Tax Credit of over Rs. 5.00 lacs and has carried forward to the next financial year. The notice requires explanation from the petitioner for such purpose.
In the facts of the present case, therefore, it cannot be said that the Commissioner has acted wholly without jurisdiction in issuing the impugned notice. It is within his purview to take cognizance of a situation emanating under section 46(1)(b) of the said Act of 2003. In the present case he is prima facie satisfied that, the State Government has suffered loss of revenue and that, there are adequate reasons for the purpose of asking for the explanation. The reasons given in the impugned order, in my view, are sufficient for the assessee to react thereto.
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The impugned notice not being vitiated any perversity, I am not minded to interfere therewith. The authorities are entitled to look at the returns in accordance with the said Act of 2003, particularly under section 46 of the said Act of 2003 thereof.
In such circumstances I find no infirmity in the impugned notice of the authority. W.P.No. 23339(W) of 2017 is dismissed without any order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Debangsu Basak, J. )