SAI TRADERS v. COMMISSIONER OF COMMERCIAL TAXES, U. P. , LUCKNOW.
2011-05-19
PANKAJ MITHAL
body2011
DigiLaw.ai
ORDER Pankaj Mithal :- Heard Sri Nishant Mishra, learned counsel for the revisionist and Sri U. K. Pandey, learned standing counsel appearing for the respondents. The revisionist is aggrieved by the order dated September 24, 2010 of cancellation of its registration passed under section 17(11) of the U. P. Value Added Tax Act (hereinafter referred to as, "the Act") by the Deputy Commissioner, Commercial Tax, Sector 13, Ghaziabad, appellate order thereof dated November 20, 2010 passed by the Additional Commissioner, Grade 2 (Appeal) 4, Commercial Tax, Ghaziabad and the order of Tribunal thereto dated December 16, 2010. The revisionist claims that he is a dealer engaged in the business of polythene bags, spices and disposable goods from a place B-4, Block - B, Balram Nagar, Jain Mandir Road, Loni, Ghaziabad. On his application for registration, a certificate of registration dated July 12, 2011 under the U.P. VAT Act as well as the Central Sales Tax Act was issued. The certificate is filed as annexure 1 to this revision. The said registration was cancelled on the ground that the revisionist is not actually doing any business which is evident from the spot inspection report dated August 13, 2010, the purchases shown by the revisionist from the firm M/s. Jai Ambay Enterprises, Ghaziabad, are bogus and further that the revisionist has obtained registration for the purpose of causing loss of revenue to the Department. The first appeal and further appeal to the Tribunal were both dismissed. Assailing the above orders, one of the question of law raised for consideration is whether the authorities were legally justified in cancelling the registration in exercise of powers under section 17(11) of the Act. Section 17(11) of the Act authorises the registering authority to cancel the registration certificate granted to a dealer on the grounds specified therein. It reads as under : "17(11).
Section 17(11) of the Act authorises the registering authority to cancel the registration certificate granted to a dealer on the grounds specified therein. It reads as under : "17(11). The registering authority, after giving reasonable opportunity of being heard to the dealer, may cancel the registration certificate with effect from the date - (a) on which dealers' liability for payment of tax has ceased; or (b) on which the dealer has discontinued the business; or (c) of order of cancellation where - (i) the dealer has obtained registration certificate by fraud or by mis-representation of facts; or (ii) the dealer has failed to furnish security or additional security, as the case may be; or (iii) the dealer has transferred any prescribed form of declaration or certificate obtained by him to any person against provisions of this Act or the rules made thereunder; or (iv) the dealer has permitted some other person to carry on business in his name; or (v) the dealer has issued any tax invoice to a dealer without making actual sale of goods; or (vi) where a transporter or carrier or transporting agent or railway container contractor fails to file return or otherwise acts in contravention of the provisions of this Act or Rules made thereunder; (vii) a person acts in contravention of provisions of section 43; (viii) where a dealer has failed to pay the tax, penalty or other dues within three months of the date such tax, penalty or other dues become payable; (ix) registration certificate has been cancelled for any other sufficient cause." Basically from the impugned orders passed it appears that the cancellation has been ordered for three reasons : (1) The revisionist was not found doing any business. (2) The purchases made by the revisionist from M/s. Jai Ambay Enterprises are bogus; and (3) The TEST number allotted to the revisionist is likely to be misused so as to cause loss of revenue to the Department. The above grounds does not find mention specifically in section 17(11) of the Act and as such cannot be the basis for cancellation of the registration. It has been argued that apart from the grounds specified above, the registering authority is empowered to cancel the registration "for any other sufficient cause" which is wide enough to include any reason which may be considered proper by the registering authority in the interest of the Revenue.
It has been argued that apart from the grounds specified above, the registering authority is empowered to cancel the registration "for any other sufficient cause" which is wide enough to include any reason which may be considered proper by the registering authority in the interest of the Revenue. Non-transacting of any business during a particular period causes no loss to the revenue and such would not constitute "sufficient cause" for cancellation of registration. The other ground that the purchases shown from Jai Ambay Enterprises are bogus are not borne out from the record. In fact the said purchases have also been shown by the said firm in its return submitted to the Department as is evident from annexure No. 13 to the revision. Moreover, the ground that the purchases are bogus has not been dealt with by the Tribunal. The Tribunal only records that the said firm from which the revisionist had made purchases was found to be involved in evasion of tax. Involvement of the said firm in tax evasion may not be attributed to the revisionist as there is no finding that the revisionist was in any way linked with the affairs of the said firm and was instrumental in such tax evasion. The only ground which now survives for cancellation of registration of the revisionist is that the TIN number allotted to the petitioner is likely to be used for tax evasion. The aforesaid finding is not supported by any material. No particular instance or the manner in which it can be used or has been used for evading tax has been pointed out. It has been argued that the revisionist is actually an employee of a transporter of Kanpur and the registration given to him is likely to be misused to benefit the said transporter. In this connection also no particular incident of misuse of the TIN number allotted to the revisionist by the said transporter has been given by either of the authorities. No material whatsoever has been produced to show that the Tin number so allotted to the revisionist was ever found to have been misused either by the revisionist himself by allowing the said number to be used by the transporter or that the said transporter has ever used it so as to avoid payment of tax.
No material whatsoever has been produced to show that the Tin number so allotted to the revisionist was ever found to have been misused either by the revisionist himself by allowing the said number to be used by the transporter or that the said transporter has ever used it so as to avoid payment of tax. In view of aforesaid facts and circumstances, none of the reasons disclosed for cancellation of the registration of the revisionist would even remotely be covered under the clause "for any sufficient cause" used in sub-clause (ix) of section 7(ii) of the Act. ... The phrase "for any other sufficient cause" used in sub-clause (ix) of section 17(11) of the Act no doubt is wide enough but three reasons on which the cancellation of registration has been ordered would not even fall under its canopy as in all the above three events the revenue is not likely to be affected or is shown to be affected. Accordingly, the question of law raised above is answered in favour of the revisionist and it is held that the grounds on which cancellation order has been passed are extraneous and are not covered by section 17(11)(c) of the Act not even within the meaning of "sufficient cause" as contained in section 17(11)(c)(ix) of the Act. In view of the above answer, the orders dated September 24, 2010 passed under section 17(11) of the U.P. VAT Act by the Deputy Commissioner, Commercial Tax, Sector 13, Ghaziabad, appellate order dated November 20, 2010 passed by the Additional Commissioner, Grade 2 (Appeal) 4, Commercial Tax, Ghaziabad and the order of the Tribunal dated December 16, 2010 are set aside. The revision is allowed but with no orders as to costs.