Allowed

M/s. Kanhaiya Traders v. The State Of Bihar and Ors.

Patna HC10 Mar 2016CWJC/4896/2016

Case brief

AI extract

What is this about?

In this writ petition challenging the rejection of an appeal for non-deposit of 20% tax, the High Court held that the petitioner's e-Return proving output and input tax constituted valid proof. The impugned order was set aside, and the appeal file was directed to be decided on merits.

What did the court decide?

The impugned order rejecting the admission of the appeal was set aside, and the Joint Commissioner (Appeals) is directed to decide the appeal on merits.

M/s. Kanhaiya Traders Vs The State Of Bihar and Ors. — GST and Indirect Tax | Patna HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.4896 of 2016

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=========================================================== 1. M/s. Kanhaiya Traders, Panchgachhiya Bazar, Naugachhiya, District - Bhagalpur through its Proprietor Kanhaiya Prasad Gupta, Son of Late Bhagwan Lal, Resident of Village and P.O. Pachgachhiya, P.S. - Gopalpur and District - Bhagalpur.

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.... .... Petitioner

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Versus

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The State of Bihar 2. The Commissioner - cum- Principal Secretary, Commercial Taxes Department, Bihar having its office at Vikash Bhawan, Bailey Road, Patna.

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The Joint Commissioner of Commercial Taxes (Appeal) Purnea Division, Purnea.

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The Commercial Taxes Officer, Khagaria Circle, Khagaria.

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.... .... Respondents

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=========================================================== Appearance :

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For the Petitioner : Mr. Ramesh Kumar Agrawal, Advocate For the Respondents : Mr. Vikash Kumar, A.C. to P.A.A.G.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA

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And

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HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 10-03-2016

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The challenge in the present writ application is to an order, Annexure-7, dated 15.10.2015 whereby an appeal filed by the petitioner was rejected on the ground that the petitioner has not deposited 20% of the assessed amount of tax as required under section 72(2) of the Bihar Valued Added Tax Act, 2005 (for short the Act).

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An order of assessment was passed by the Assistant Commissioner, Commercial Taxes, Khagaria on 08.05.2015. In terms of the assessment order, demand notice dated 19.05.2015 was

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Patna High Court CWJC No.4896 of 2016 dt.10-03-2016

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issued to the petitioner demanding a sum of Rs. 38,57,325/- as amount of tax and the interest of Rs.6987/-. The petitioner filed an appeal. The appeal was admitted but subsequently a show cause notice was issued on 24.07.2015 as to why an order admitting the appeal be not recalled. The petitioner filed a reply dated 09.10.2015 stating that he has deposited a sum of Rs.14,89,021.55 as output tax at source and, therefore, the same is deductible as Input Tax Credit. It was stated that the said amount is more than 20% of the demand raised, therefore, the petitioner satisfies the requirement of subsection (2) of Section 72 of the Act.

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Such assertion of the petitioner was rejected by the Joint Commissioner, Commercial Taxes (Appeal) on the ground that the petitioner has not produced the proof of payment of tax and that explanation given by it is vague. Therefore, the appeal is not liable to be admitted as there is non-compliance of the provisions of Section 72(2) of the Act.

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Learned counsel for the petitioner has referred to acknowledgement/ receipt for payment of Value Added Tax as Annexure-2 whereby on 22.12.2014 as against total output tax of Rs.14,97,349.13 the total input tax is said to be Rs.14,96,170.77. The said amount is more than 20% of the demand raised, thus, it would comply with the statutory requirement under

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Patna High Court CWJC No.4896 of 2016 dt.10-03-2016

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sub-section (2) of Section 72 of the Act.

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We have heard learned counsel for the parties. There is no counter to say that Annexure-2 is not correct. The argument of learned counsel for the State that there is no proof of payment of tax is not tenable. It is a copy of e-Return filed by the petitioner in respect of output tax and input tax deposited by the petitioner. There is no denial of the payment of input tax, as alleged by the Petitioner vide Annexure-2. Thus the petitioner has proved documents to show that 20% of the tax assessed already stands paid. Thus we find that the order rejecting the admission of appeal of petitioner suffers from illegality and irregularity. Therefore, the impugned order is set aside. The Joint Commissioner (Appeals), Purnea is directed to decide the appeal on merits.

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The writ application thus stands allowed.

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(Hemant Gupta, J)

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(Ramesh Kumar Datta, J)

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BKS/-

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N. A. F. R

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M/s. Kanhaiya Traders v. The State Of Bihar and Ors.

Case brief

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M/s. Kanhaiya Traders v. The State Of Bihar and Ors.

Case brief

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