NASIRUDDIN BISWAS Vs. NATIONAL BOARD OF REVENUE

JUDGEMENT

(1.) This Petition for leave to appeal is directed against the judgment and order dated 23.04.2005 of the High Court Division passed in Writ Petition No. 6117 of 2002 of discharging the Rule which was issued calling upon the respondent to show cause as to why the office order under Memo No.4th /A(6)-18 Mullo-Goshona/Bibidh/ 2001/ 2087 dated 19.09.2002 (Annexure-G) and the office order under Memo No. 4th /(6)-187 Mulla-Ghosona Bibidha 72001/1221 dated 09.06.2002 (Annexure-C), in so far as it relates to the charge of evasion, should not be declared to have been passed without lawful authority and are of no legal effect and as to why the respondents should not be directed to change the name and business place of the petitioner in terms of annexure F-I.

(2.) The petitioner filed the above writ petition on the averments that he, on 22.11.19991, established a printing section of Nasir Biri Industry Ltd and on the same date the said press section was enlisted in Form VAT-8 and the petitioner used to pay Tk.10,000/-annually as turnover tax as determined in accordance with the Value added Tax Act, 1991 (VAT Act, 1991) and the Rules framed there under upto the year 1993-944 meanwhile and inspection as made in terms of which and office order was issued under Memo dated 14.12.1993 asking the petitioner to pay Tk.5,000/- more in addition to Tk. 10,000/- in respect of the year 1993-94 and it was paid; subsequently on the basis of further inspection of the press section, inspection report was given and thereby Memo dated 19.06.1994 the petitioner was directed to pay 2% turnover tax on the printing charge which the petitioner paid and subsequently, as directed on 11.07.1996, 4% turnover tax was paid and then the said turnover tax was enhanced up to 4.5% by office order dated 03.06.1997 and the petitioner paid the same upto 04.09.2000, that is, till the registration of the press section under Form VAT-6 as the service of the said Nasir Biri Industry Ltd did not exceed 15,000,00/00 as has been shown in the writ petition; however after another inspection held during 12.10.1998 to 15.10.1998 by Memo dated 09.06.2002 charge was brought against the petitioners to the effect that he evaded payment of VAT to the tune of Tk.7,71,450/00 during the period from 1997-98 to 1998-99 and then charge was brought against the petitioner for evasion o& payment of VAT to the tune of Tk. 17,78,535/32 upto the month of August, 2000 and in response the petitioner, on 31.07.2001, made prayer to the Commissioner of Customs, Excise, VAT, Jessore for exemption from payment of the aforesaid amount of Tk. 17,78,435.32 asserting that he used to pay the turnover tax in terms of the VAT Act, 1991 and VAT Rules and he on his own option on 05.09.2000 made a prayer for enlistment of the said Nasir Biri Industries Ltd to pay tax under Form VAT-6 which was allowed on 29.01.2001 and the petitioner had been paying VAT under the said Form of VAT-6.

(3.) The respondent No. 1 contested the Rule and filed by affidavit-in-opposition denying the material allegations and contending that VAT System is a modern concept in the taxation system of the world and it is also an indirect tax being substituted in Bangladesh in the year 1991 in place of Sales Tax and according to the provisions as laid down in VAT Act, 1991 the imposition of turnover tax or VAT is dependant upon the ceiling or volume of turnover of the product and the ceiling changed from time to time giving cause to decide as to whether it would be turn over tax or VAT and actually, on the basis of that ceiling or turnover of the Press Section of Nasir Biri Industry Ltd, the rate of turnover tax was imposed at first @ 2% and then 4% and thereafter due to enhancement of the turnover the said Press Section of the above Industry came into the network of VAT and VAT Registration was allowed and then VAT @ 15% was imposed upon the Press Section of the above Industry in place of turnover tax @ 4% and so no illegality was committed in demanding the evaded VAT and in fact demand vide notice dated 31.05.1999 was also issued on Nasir Biri Industries Ltd for payment of Government dues amounting to Tk.7,53,545.23 and moreover after giving personal hearing to the concerned management of the petitioner, demand notice was issued.