Deepak Gupta, C.J. - (1.) BY means of this petition the petitioner (hereinafter referred to as "the assessee") has challenged the order dated September 14, 2011 passed by the Superintendent of Taxes, Vigilance Cell, Agartala, rejecting the petitions made by the petitioner under section 74 of the Tripura Value Added Tax Act, 2004 (in short, "the TVAT Act"). The undisputed facts are that the assessee at the relevant time was running a transport company under the name of M/s. Laxmi Goods Carriers. On May 25, 2009 notice was issued to the assessee to appear before the Superintendent of Taxes, Vigilance Cell, Agartala on May 27, 2009. The assessee was also directed to produce all the permits required of consignment of goods under the provisions of the TVAT Act. The assessee sent a response. It appears that the matter was then adjourned to May 29, 2009, on which date the assessee filed an application to the Superintendent of Taxes, Vigilance Cell, Agartala, stating that the Department had asked for the permits in respect of 6,064 consignments and in the short period only 24 (twenty four) permits could be found out and 3 (three) months time be granted to the assessee to produce the remaining permits.
(2.) SIMILARLY , on May 28, 2009 the assessee was asked to produce the permits with regard to 909 (nine hundred nine) other consignments. On May 30, 2009, the assessee stated that it would not be possible to him to produce all the permits within this short time and, therefore, prayed for extension of time by three months. It also appears that at the time of the hearing the assessee also claimed that due to fire in the office of the assessee -transport company a large number of delivery permits were burnt and again requested for time. The assessing officer did not grant such time and levied tax of Rs. 4,34,02,243 and penalty at 150 per cent amounting to Rs. 6,51,03,365. With regard to the second notice issued on May 28, 2009, an order was passed on June 9, 2009 levying tax of Rs. 1,27,77,674 and penalty of Rs. 1,91,66,511, i.e., a total amount of Rs. 3,19,44,185. The assessee did not challenge the assessment, but on April 8, 2011 filed petitions for rectification of the orders in terms of section 74 of the TVAT Act. He in the meantime had collected the permits in respect of a large number of consignments and prayed that after taking these permits into consideration the tax be re -assessed. The assessing authority rejected the rectification petitions on the ground that the same were barred by time. Thereafter the petitioner approached this court and on June 9, 2011 this court on consideration of the provision of section 74 of the TVAT Act held that the period in which rectification petition could be filed was three years and hence the petition was within time and directing the assessing authority to decide the rectification petitions in accordance with law. Now the rectification petitions have been dismissed on the ground that under provision of section 74 of the TVAT Act the petitioner cannot be permitted to re -open the case.
(3.) TO appreciate the rival contention of the parties, it would be appropriate to refer section 74 of the TVAT Act which reads as follows: 74. Power to rectify error apparent on the record. - -(1) An assessing, appellate or revisional authority including the Tribunal may, on an application or otherwise at any time within three years from the date of any order passed by it, rectify any error apparent on the face of the record: Provided no such rectification which has the effect of enhancing the liability to pay tax or penalty or penal interest shall be made unless such authority has given notice to the person affected and has allowed him a reasonable opportunity of being heard. (2) Where such rectification has the effect of enhancing the tax liability or penalty, the assessing authority shall give the dealer or other person a notice of assessment or penalty and the dealer or other person shall pay the tax in the manner prescribed and when such rectification has the effect of reducing the tax liability or penalty, the assessing authority shall issue refund of the excess tax paid, if any.;