SUPERTON ELECTRONICS PRIVATE LIMITED Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner is before this Court seeking that the seizure list dated 10.12.2013 be quashed. The petitioner in that regard is seeking that sub-rule (5) of Rule 41 of the Assam Value Added Tax Rules, 2005 ('Rule 2005' for short) be declared ultra vires the Assam Value Added Tax Act, 2003 ('Act 2003' for short). In that light, the petitioner is also seeking that the circulars dated 08.09.2011, 18.11.2011, 14.03.2012, 14.03.2012 and 18.05.2012 be declared illegal and void ab- initio. Further, the orders dated 22.05.2014 and 30.05.2014 passed by the Superintendent of Taxes and the Inspector of Taxes imposing the tax and penalty be quashed.

(2.) The petitioner is a private limited company which has its Registered Office at Kolkata and the Branch Office at Guwahati. It has been carrying on business relating to sale and supply of electronic goods. The petitioner is registered under the various enactments including the Act 2003. In the course of its business, the registered office at Kolkata transferred 300 numbers of Hard Disk Drive under the transfer invoice-cum-challan dated 9.12.2013 valued at Rs.10,09,500/- through M/s Team United under the consignment note dated 10.12.2013 containing 12 cartoons. The present issue relates to the said consignment, wherein the competent authority has arrived at the conclusion that there was an attempt to evade the tax payable on the said goods and has, accordingly, imposed the penalty at three times the quantum of tax payable. It is in that light, the petitioner claiming to be aggrieved is before this Court assailing the imposition of the penalty. The proviso in sub-rule (5) of Rule 41, which provides for furnishing the documents in the electronic format and the non-compliance of which has resulted in the present action is assailed on the ground that the power vested with the Commissioner to issue circulars amounts to sub-delegation by the Government and, therefore, the same is not sustainable. Hence, it is contended on behalf of the petitioner that if the said proviso is declared as ultra vires, the compliance in the electronic format would not arise and, in that circumstance, since the goods were otherwise accompanied by the requisite documents in its physical form, the requirement of law would be met and the levy of penalty would not be justified.

(3.) The respondents through their affidavit-in-opposition have sought to sustain their action by contending that the impugned circular itself indicates the object with which the furnishing of information in the electronic format is provided for. In that circumstance, it is contended that while checking the goods as empowered under Section 75(12)(B)(II) of Act 2003, the transporter could not produce the required documents and, as such, the consignment was seized. The petitioner also had not uploaded the document in the electronic format and, in such circumstance, the uploading which was attempted after five days would not meet the requirement. Accordingly, opportunity was granted to the petitioner and, on considering the reply, the penalty as provided in law was imposed. In that light, they seek to sustain their action.