ALOKE PATRA AND ANR. Vs. DEPUTY COMMISSIONER OF COMMERCIAL TAXES AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 wherein the Petitioner has challenged the show -cause notice dated February 9, 2007 issued by the Deputy Commissioner of Commercial Taxes, Burrabazar Circle as well as the suo motu revisional order dated April 23, 2007 passed by the said authority in suo motu revision case No. SMR/DC/BB/RJ -04/06 -07.

(2.) THE fact of the case is that Petitioner No. 1 and No. 2, Sarbasree Aloke Patra and Madan Mohan Patra are the partners of an unregistered partnership -firm carrying on business under the trade name of M/s. Patra Brothers at Room No. 204, Ground Floor, Raja Katra, 167, N. S. Road, Kolkata 700 007 as a retailer of miscellaneous taxable goods, mainly betel nuts. The firm is registered under the West Bengal Value Added Tax Act, 2003 and held liable to pay tax with effect from May 14, 2005. Petitioner No. 2 filed an application in form 16 to the Deputy Commissioner, Commercial Taxes, Burrabazar Circle under Section 16(3) of the West Bengal VAT Act, 2003 on May 11, 2006 for payment of tax at the compounded rate. As a matter of fact, the firm filed returns for the first three quarters of 2006 -07, i.e., quarter ending on June 30, 2006, October 31, 2006 and December 31, 2006 along with the receipted challans showing payment of tax at the compounded rate. In February, 2007 the Petitioners have received a show -cause notice dated February 9, 2007 in form 70 from the Deputy Commissioner, Respondent No. 1, to prefer objection, if any, fixing the date of hearing on March 13, 2007 against the suo motu revisional proposal to hold that the dealer will be no longer entitled to enjoy the benefit under Section 16(3) of the West Bengal VAT Act, 2003 as the dealer imported goods from outside West Bengal in contravention of Section 73 of the Act. A written objection dated March 30, 2007 was filed by Petitioner No. 2. Subsequently, Respondent No. 1 passed the suo motu revisional order on April 23, 2007 and held that the Petitioners were not eligible to get the benefit under Section 16(3) of the VAT Act. Being aggrieved the Petitioner No. 1 and No. 2 have filed this revision application before this Tribunal.

(3.) MR . B. Majumdar, learned State Representative, has opposed the contention of the learned advocate and has relied on the suo motu order passed by the Deputy Commissioner, Commercial Taxes, Burrabazar Circle. With respect to the contention of the learned advocate that pre -existence of an order is absolutely necessary for initiating suo motu revisional proceedings, the learned State Representative has submitted that nowhere in Section 16(3) or the relevant Rule 38 it is prescribed that an order accepting the benefit of compounded rate of tax has to be passed or to be communicated to the dealer. The learned State Representative has argued that the acceptance in such case is deemed and the order is deemed to have been passed which is very similar to deemed assessment provision. It is pointed out that a deemed assessment may be reopened though there was no pre -existence of the order of deemed assessment. While defending the merits of the order passed by the Deputy Commissioner, the learned State Representative contended that the Sales Tax Officer, Raja Katra Charge informed the seizure of goods as well as payment of penalty to the Deputy Commissioner, Burrabazar Circle under memo. No. 3263 dated February 6, 2007 on the basis of which suo motu revisional proceedings were initiated under Section 85 of the West Bengal VAT Act, 2003 read with Rule 38(6). It is contended by the learned State Representative that once a dealer becomes an importer, he becomes ineligible to enjoy the benefit under Section 16(3) of the Act for other years also.