Decided on November 23,2010

Lakshmi Procon Limited Appellant
Senior Joint Commissioner Of Commercial Tax, Chowringhee Circle And Others Respondents


DEB KUMAR CHAKRABORTI, J. - (1.)BY this application under section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner, M/s. Lakshmi Procon Limited, an incorporate company within the meaning of the Companies Act, 1956, having its registered office at 23A, Netaji Subhas Road, Fortune Tower, 1st Floor, Room No : 10, Kplkata 700001, has challenged the legality and validity of the letter sent under Memo No. 2357 dated July 2, 2010 by the Senior Joint Commissioner, Commercial Taxes, Chowringee Circle, informing the rejection of form 16 filed by the petitioner for payment of tax at the compounded rate. Mr. J.A. Khan, learned advocate of the petitioner, has submitted that the petitioner was a reseller as well as a works contractor during the year 2009 -10. However, learned advocate has claimed that the petitioner is wholly engaged in works contracts during the year 2010 -11. Accordingly, the petitioner filed a form 16 addressed to the Joint Commissioner of Sales Tax, Chowringhee Circle on June 28, 2010 for payment of tax at the compounded rate under sub -section (4) of section 18 of the West Bengal Value Added Tax Act, 2003, Subsequently, under the above referred memo, the Joint Commissioner of Sales Tax informed the petitioner that since the petitioner was engaged in retail business as well as works contracts during the year 2009 -10, the petitioner is ineligible to get the benefit of payment of tax at the compounded rate under section 18(4) of the Act.
(2.)The learned advocate has claimed that after receiving the memo, the petitioner requested to supply a copy of the order passed by the Senior Joint Commissioner. But the said Joint Commissioner informed the petitioner that the communication memo itself is the order passed by him and no separate order was passed.
(3.)MR . Khan has argued that sub -section (4) of section 18 of the Value Added Tax Act provides, inter alia, that any registered dealer having liability to pay tax under section 14 of the Value Added Tax Act and who is not engaged, among others, in reselling goods, may, at his option, to pay tax at compounded rate, as prescribed, on the aggregate of the amount received or receivable, subject to the conditions and restrictions as may be prescribed, for each month of the year in lieu of the amount of tax payable by him under section 18(1) of the Value Added Tax Act. The learned advocate has further claimed that being eligible to opt for paying tax at the compounded rate, the petitioner exercised its option for the year 2010 -11 in the prescribed manner, within the prescribed time, before the appropriate authority. The learned advocate has argued that the scheme of section 18(4) of the Act read with rule 39 of the Value Added Tax Rules is obviously a yearly affair. It is not the law that a cause of ineligibility carries from year to year. As a result, the execution of works contract and reselling of goods in the previous year does not and cannot make the petitioner disentitled to pay tax at compounded rate during the current year. The learned advocate has prayed for quashing the memo in dispute and to issue a direction to the authority concerned for acceptance of form 16. The learned advocate has also cited a decision of this Tribunal held in the case of Aloke Patra v. Deputy Commissioner of Commercial Taxes, Burrabazar Circle : (2010) 35 VST 428 (WBTT) (RN -201 of 2007) and pointed out that this Tribunal also held that each year is an independent period to be considered separately and a disqualification for a year does not mean the said dealer is disqualified for all the years to come.

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