Thyssen Krupp Elevator (India) Pvt. Ltd. Vs. State of Punjab and another ( P&H HC)
The plea of alternative remedy cannot be accepted as question involved in the present case is of lack of jurisdiction on admitted facts. In the present case, the petitioner furnished all the information and raised a dispute of tax ability relying upon the judgment in Kone Elevators (India) Ltd’s case (supra). In such a situation there could be no question of attempt at tax evasion. Invocation of jurisdiction to impose penalty at the Information Collection Centre was not called for.
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 15705 of 2010
Date of decision: 27.9.2010
M/s Thyssen Krupp Elevator (India) Pvt. Ltd.
State of Punjab and another
ADARSH KUMAR GOEL, J ( Oral)
1. This petition seeks quashing of order dated 25.7.2010 (Annexure P-10) passed by respondent no.2 imposing penalty under Section 51(7)(b) of the Punjab Value Added Tax, 2005 (hereinafter referred to as “the Act”).
2. Case of the petitioner is that on 17.7.2010 goods of the petitioner being elevator components which were being transported to the State of Punjab were detained at the Information Collection Centre. Goods were accompanied by invoices issued by the petitioner in favor of M/s Barnala Builders & Property Consultant, Zirakpur.
3. The stand of the assessee was that goods were being transported in pursuance of an agreement for sale and nature of transaction was inter-State sale and the tax had been paid in the State from where movement of goods started. Rejecting this stand, the Excise and Taxation Officer-cum-officer-in-charge, Information Collection Centre, Kallar Khera (District Ferozepur) took the view that transaction was of intra- State sale in the State of Punjab as goods were to be used in the works to be executed in the State of Punjab.
4. In support to challenge the impugned order, learned counsel for the petitioner submits that transaction in question was clearly of inter-State sale which occasioned the movement of goods from the State of Maharashtra to the State of Punjab. Similar transaction was involved in case State of Andhra Pradesh Vs. Kone Elevators (India) Ltd. (2005) 26 PHT1 (SC) (FB) decided by Hon’ble Supreme Court wherein it was held that such a transaction will be of sale and not of works contract. In any case, this was a legal issue which required adjudication and raising thereof could not be held to be attempt at evasion. Proceedings under Section 51(7) (b) of the Act at the check post were not a substitute for adjudication of seriously disputed questions as held by this Court in Xcell Automation Vs. Government of Punjab and another (2007) 146 PLR 685. Invocation of jurisdiction for imposing penalty was not permissible where relevant documents were duly produced but a bonafide plea against tax ability was raised and there was neither misdeclaration nor concealment.
5. Learned counsel for the respondent raised an objection that the order was appealable and and the writ petition was not maintainable. He also submitted that transaction was patently of works contract and not inter-State sale.
6. The plea of alternative remedy cannot be accepted as question involved in the present case is of lack of jurisdiction on admitted facts.
7. In the present case, the petitioner furnished all the information and raised a dispute of tax ability relying upon the judgment in Kone Elevators (India) Ltd’s case (supra). In such a situation there could be no question of attempt at tax evasion. Invocation of jurisdiction to impose penalty at the Information Collection Center was not called for.
8. Accordingly, we allow this writ petition and quash the impugned order 25.7.2010 (Annexure P-10). It is made clear that this order will not debar the Assessing Authority to determine the question of tax ability during the assessment.
September 27, 2010
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