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2006 DIGILAW 476 (KAR)

SAMRAT GRANITE (P) LTD. v. COMMERCIAL TAX OFFICER

2006-06-09

MOHAN M.SHANTANAGOUDAR

body2006
MOHAN SHANTANAGOUDAR, J. ( 1 ) SRI N. Nagaraju, learned Counsel appearing for the petitioner, seeks permission to withdraw the prayer (a) made in writ petition regarding striking down rule 157 (1) (a) of the Karnataka value Added Tax Rules, 2005, as void and unconstitutional. Permission is granted. Hence, the matter is heard on other prayers. ( 2 ) BRIEF facts of. the case are that : the petitioner was transporting granite blocks pursuant to purchase under the Tax Invoice No. 016 dated February 24, 2006, accompanied by delivery note in Form VAT No. 515. Those documents are produced at annexures "a" and "b" to the writ petition respectively. The vehicle which was carrying the granite blocks was checked at a check-post. At the time of inspection, the driver of the lorry produced the aforesaid documents vide annexures "a" and "b" before the first respondent. The said fact is not in dispute. ( 3 ) ACCORDING to the first respondent, the delivery note which accompanied the goods, should have been in form VAT No. 505 and not in form VAT No. 515. In this view of the matter, a notice came to be issued to the petitioner under Section 53 (12) of Karnataka Value Added tax act, 2005 (hereinafter referred to as "the KVAT Act", for short ). The copy of the said notice is produced at annexure "c". As the goods of the petitioner were detained, the amount of penalty proposed in the said show cause notice amounting to Rs. 1,13,477 was paid by the petitioner on the very day of issuance of show cause notice. Obviously, this amount must have been paid by the petitioner with a view to get the goods released. ( 4 ) BY filing this writ petition, petitioner has challenged the validity of the notice vide annexure "c" dated February 25, 2006 issued by the Commercial Tax Officer, Sales Tax Check-post. ( 5 ) AS could be seen from the show cause notice, annexure "c", the first respondent mentioned therein that the petitioner shall have to carry the delivery note in form VAT No. 505 for carrying rough granite blocks and that, as the driver had failed to produce form VAT No. 505 at the time of inspection, the penalty was sought to be imposed under Section 53 (2) of the KVAT Act. To determine the question as to whether the delivery note was to be carried or not along with carriage, as on the relevant date, it is necessary to note certain provisions of law. Section 53 (2) of the KVAT Act reads thus : Section 53 (2 ). The owner or person in-charge of a goods vehicle or a boat, ship or similar vessel shall : (a) carry with him a goods vehicle record, a trip sheet or a log book, as the case may be; and (b) carry with him a tax invoice or a bill of sale or a delivery note or such other documents as may be prescribed, in respect of the goods carried in the goods vehicle or boat, ship or similar vessel; and. . . ( 6 ) THE bare reading of the aforesaid Section 53 (2) (b) makes it clear that the owner or person in-charge of the goods vehicle shall carry with him a tax invoice or a bill of sale or a delivery note or such other documents as may be prescribed, in respect of the goods carried in the goods vehicle. Thus, it is open for the owner or person in-charge of the goods either to carry with him a tax invoice, or a bill of sale or a delivery note or such other documents as may be prescribed. It impliedly means that, it is not necessary that he should carry with him all the necessary documents. The inspection was made on February 24, 2006. As on that day, Section 53 (2) (b) remained unamended and it read as aforesaid. Thus, as on the date of the inspection, petitioner is justified in carrying and producing either the tax invoice or bill of sale or delivery note or such other documents as may be prescribed. In this case it is not in dispute that the petitioner has carried and produced the tax invoice and bill of sale. The same is clear from the documents produced. Thus, the petitioner has fulfilled the requirement of Section 53 (2) (b) of the KVAT act. Thus, the show cause notice by which the first respondent has directed the petitioner to produce the delivery note in Form VAT No. 505 is illegal and therefore, cannot be sustained. The same is clear from the documents produced. Thus, the petitioner has fulfilled the requirement of Section 53 (2) (b) of the KVAT act. Thus, the show cause notice by which the first respondent has directed the petitioner to produce the delivery note in Form VAT No. 505 is illegal and therefore, cannot be sustained. ( 7 ) HOWEVER, learned Additional Government Advocate Smt. Niloufer Akbar by relying upon the amended provisions of Section 53 (2) (b) of the KVAT Act, argued that the petitioner ought to have carried and produced the documents such as tax invoice or bill of sale and delivery note and such other documents as may be prescribed. Section 53 (2) (b) of the KVAT Act is amended to the aforesaid effect with effect from April 1, 2006. There cannot be any dispute that it is mentioned in the very amendment that the amendment shall be and shall always be deemed to have been substituted for the words "a tax invoice or a bill of sale and a delivery note and such other documents as may be prescribed". If the amended provision is read, it is clear that the petitioner should carry tax invoice or a bill of sale also along with other documents. But the said amendment was not in existence as on February 25, 2006. As aforesaid, the amendment came into effect with effect from April 1, 2006. Thus, whatever acts that are done by the petitioner on february 25, 2006 are protected under the old law,. e. , as existed prior to the amendment dated april 1, 2006. The amended provisions cannot make the petitioner liable to pay penalty for the acts done by him earlier. A person cannot be penalised and penalty cannot be levied for the acts done by him at an earlier point of time, inasmuch as there was no law levying penalty during the said period. In this view of the matter, the arguments advanced on behalf of Government cannot be accepted. ( 8 ) ANOTHER contention advanced on behalf of the Government is that the petitioner has paid the penalty without any protest and without showing cause to the show cause notice issued to him and that therefore, he is not entitled to get any relief in this case. ( 8 ) ANOTHER contention advanced on behalf of the Government is that the petitioner has paid the penalty without any protest and without showing cause to the show cause notice issued to him and that therefore, he is not entitled to get any relief in this case. The said contention also cannot be accepted, inasmuch as, the petitioner might have paid the penalty immediately on the next day of issuance of show cause notice, that too, without any protest, obviously with an anxiety to get the goods released forthwith. Merely because the petitioner has paid the amounts of penalty without protest, it cannot be said that he has forfeited his right to question the validity of the show cause notice. ( 9 ) IN view of the above, the show cause notice dated February 25, 2006 issued by the commercial Tax Officer, Sales Tax Check-post vide annexure "c", is liable to be quashed. Accordingly, the same is quashed. The amount of penalty paid by the petitioner in pursuance to the show cause notice, annexure "c", shall be refunded to him. ( 10 ) WRIT petition is allowed accordingly.