Decided on September 14,2010

Sunil Kumar Agarwala Appellant
Joint Commissioner Of Sales Tax And Others Respondents


DEB KUMAR CHAKRABORTI, J. - (1.)THIS is an application under section 8 of the West Bengal Taxation Tribunal Act, 1987 wherein the petitioner, Mr. Sunil Kumar Agarwala, the proprietor of M/s. Riya Exports, having his office at 1, British India Street, 7th floor, Room No. 707, Kolkata 700 069, has challenged the show -cause notice in form 70 for suo motu revision of the assessment order passed by the Sales Tax Officer, Esplanade Charge in respect of fourth quarter ending on March 31, 2006 and the suo motu revisional order dated July 22, 2010 passed by the Joint Commissioner of Sales Tax, Chowringhee Circle, under section 85 of the West Bengal Value Added Tax Act, 2003, on the ground of illegality and praying for setting aside the same and for quashing the modified notice of demand in form 28 served upon the petitioner. Mr. S.S. Sengupta, learned advocate of the petitioner, has submitted that the petitioner is carrying on business mainly as an exporter of engineering goods and filed four quarterly returns for the fourth quarter ending on March 31, 2006. The petitioner purchased goods on payment of tax under the VAT Act and sold those goods in course of export under section 5(1) of the Central Sales Tax Act, 1956 and as such, no output tax was payable by the petitioner. As a result, the petitioner is entitled to refund of excess input -tax credit (in short, ITC) under section 61(aa) of the West Bengal Value Added Tax Act, 2003. Learned advocate has claimed that accordingly the petitioner filed an application for refund on May 14, 2007 for refund of Rs. 5,36,718.80. The Sales Tax Officer, Esplanade Charge, respondent No. 2, by a letter dated March 5, 2008 issued under memo No. 7013, informed the petitioner that the application for refund is not admissible under section 61 of the Act and the refund might be made after assessment. Subsequently, the assessment under section 46 of the Act was completed on August 18, 2008. The entire claim of export was allowed and Rs. 5,33,086 was shown as excess ITC refundable to the petitioner. It is alleged by the learned advocate that though demand notice in form 27 was issued and received by the petitioner on September 11, 2008, but no copy of assessment order and Refund Adjustment Order (RAO) or Refund Payment Order (RPO) were enclosed with the demand notice.
(2.)Mr. Sengupta has further submitted that the petitioner being dissatisfied with inaction of respondent No. 2 for not refunding the excess I.T.C., has filed a revision petition before this Tribunal on April 5, 2010 (vide RN -260 of 2010) with a prayer for refund. After hearing both sides this Tribunal passed an interim order on April 21, 2010 directing the respondents to refund Rs. 3 lacs (rupees three lacs) only by May 31, 2010. But instead of refund of Rs. 3 lacs, the respondents filed a review petition (vide, RW -19 of 2010), but the same review petition was dismissed by the Tribunal on June 10, 2010. Learned advocate has submitted that thereafter the petitioner waited for a month and has filed a contempt petition (vide, CT -6 of 2010) on July 19, 2010. Both the revision and the contempt petitions are pending before this Tribunal.
(3.)THE learned advocate of the petitioner has submitted that in the background of above facts, the petitioner received a show -cause notice on June 30, 2010 in form 70 issued under memo No. 2263 dated June 29, 2010 for suo motu revision of the original assessment order under section 85 of the West Bengal Value Added Tax Act. In the gist of the proposed, order respondent No. 1 alleged that the petitioner's claim of ITC of Rs. 5,36,718 is not permissible under section 22 of the Act on the ground that the petitioner's purchases were in the course of export under section 5(3) of the Central Sales Tax Act, 1956. The learned advocate has stated that originally the date of hearing was fixed on July 14, 2010. The petitioner prayed for one month time, but respondent No. 1 again fixed the date of hearing on July 22, 2010. The petitioner again applied for adjournment for one month, but respondent No. 1 passed ex parte order on July 22, 2010 without allowing reasonable opportunity of being heard. The said suo motu revisional order was received by the petitioner on July 28, 2010.

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