Raj Kamal Marbles Marble Market vs Deputy Excise and Taxation Commissioner and Others

This appeal has been preferred by the assessee u/s 68 of the Punjab Value Added Tax Act, 2005 (for short, "the Act") against order dated 23.10.2009, Annexure A-4, passed by the VAT Tribunal in Appeal (VAT) No. 478 of 2009, proposing to raise following substantial questions of law:

a) Whether the concerned designated officer cum Excise and Taxation Officer is empowered u/s 56 of the act to impose the penalty?

b) Whether the act on the part of the ld. Authorities below not to deal with any issue/grounds/submissions taken by the appellant in the application as well as appeal is justified?

c) Whether the appellant who is under financial hardship should be burdened with the prior deposit of 25% of the huge additional demand though the facts prima-facie proves the demand created is not legally sustainable?

d) whether the intention of the legislation to incorporate Section 62(5) of the act is same for the persons who couldn''t deposit the prior deposit due to unavoidable circumstances and the said persons have no right for personal opportunity of hearing?

e) whether the impugned orders are legally sustainable in the eyes of law?

We have heard Learned Counsel for the appellant.

It is not disputed that question (a) is covered by order of this Court in CWP No. 15652 of 2009 Idasa India Ltd. v. State of Punjab and Ors.

As regards the remaining questions, the Tribunal held that the petitioner failed to deposit 25% of the amount, as per Section 62(5) of the Act, which was a condition precedent for hearing the appeal.

Learned Counsel for the appellant states that if the amount paid alongwith the return was taken into account, the deposit should have been held to have been made.

This submission cannot be accepted. A perusal of Section 62(5) of the Act shows that calculation of 25% of the amount has to be with reference to total amount of tax, penalty and interest, if any. Though Learned Counsel for the appellant states that the said amount has been paid, this submission is not substantiated. There is, thus, no substantial question of law. The appeal is dismissed.

However, time to make deposit in terms of Section 62(5) of the Act is extended by one month from today. If the payment has already been made, as submitted, the appellant will be at liberty to show the proof to the appellate authority. For this purpose, the appellant may appear before the appellate authority on 25.10.2010.