GANPATI SOLVEX PRIVATE LIMITED, Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) Since the factual matrix in these two writ petitions is identical in nature, except for the assessment year being different, that is, 2007-08 in Writ Petition (T) No. 7315/2009 and 2008-09 in Writ Petition (T) No. 7486/2009, this Court is proceeding to decide the two writ petitions by this common order.

(2.) Challenge in the present writ petitions is to the notice dated 28.10.2009 (Annexure P-5) and the consequential revenue recovery proceeding drawn on 27.11.2009 (Annexure P-6). Annexure P-5 is a notice seeking demand of advance tax of the State, Central and Entry Tax for the aforesaid assessment years.

(3.) Contention of the learned Counsel for the Petitioners is that the said issuance of notice for advance tax is bad in law, for the reason that it is in total contravention to the provisions of Section 26 of the Chhattisgarh Value Added Tax Act, 2005 (hereinafter referred to as 'the Act of 2005'). According to the learned Counsel for the Petitioners, it is not a case where the Petitioners have failed to deposit the return which is one of the most essential ingredient. Further necessary ingredient is that apart from there being a failure in furnishing the return, the assessee should also fail to pay the tax payable, which is not the case so far as the Petitioners are concerned as they have timely deposited their return showing nil return for the assessment years on account of there being an exemption in their favour for the relevant period. Learned Counsel for the Petitioners further submits that the State Government in their reply filed to the writ petition itself have admitted the submission of the returns by the Petitioners in paragraph 8 of their reply. Thus, it stands proved that it is not a case where the Petitioners have failed to furnish their return during the said period. According to the learned Counsel for the Petitioners, the remedy which was available with the department was for initiation of appropriate assessment proceeding for the said period and only after determination of the tax payable could they have issued appropriate notices for deposit of unpaid tax if any. He thus prayed for quashment of Annexure P-5 and consequential order Annexure P-6.