ERA INFRA ENGINEERING LTD. Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The present writ petition has been filed challenging the order passed by the Additional Commissioner, Commercial Tax, Raipur, vide Annexure P-1, dated 3.4.2017, passed in Revisional Order No. 04/BSP/2016(State) and also the order dated 22.12.2015 (Annexure P-6) passed by the Regional Deputy Commissioner, Commercial Tax, Bilaspur, in Order No. 08/Remand/2014(State).

(2.) The dispute pertains to the assessment year 2007-08. The allegation against the petitioner-firm as per the department is that they had a works contract with the railways department pertaining to railway signaling/communication cables. After the petitioner had submitted its return, the same was subjected to audit and in the course of audit, an objection was raised as to the tax paid on the cable purchased by the petitioner by executing a contract. As per the audit objection, the tax paid by the petitioner was of 4% whereas it should had been 12.5% and as such the petitioner is said to have concealed and evaded tax to the tune of 8.5%.

(3.) According to the learned counsel for the petitioner, the assessment made by the authorities is bad in law for the reason that the case against the petitioner can under no circumstances be held to be one under concealment of facts or is in any manner an evasion of tax. According to the counsel for the petitioner, the finding of the officer is only on the basis of change of opinion with no substantive or substantial material. According to the counsel for the petitioner, the department itself has not been able to prove its case since the department has not discharged its duties that of proving the fact that the cable used by the petitioner in the execution of the work contract would be taxed at 12.5%. According to the counsel for the petitioner, the burden of proof was upon the department to show that the said cable used by the petitioner would fall under Part IV of Schedule 2; rather it is a case where the product was one which would fall under Part II of Schedule 2 of the Value Added Tax Act, 2005, as is also certified by the Chartered Engineer. The counsel for the petitioner has relied upon the decision of the Madhya Pradesh High Court in the case of Eisher Motors Ltd. and Anr. v. State of M.P. and Ors., 2005 (3) MPHT 399, and further also has relied upon the decision of the Hon'ble Supreme Court in the case of Haleema Zubair, Tropical Traders v. State of Kerala, 2008 (16) SCC 504.