GAUHATI HIGH COURT ISSUES ORDER ON OM TELECOM LOGISTICS V/S THE STATE OF ASSAM AND 2 ORS

GUWAHATI, India, Feb. 2 -- Gauhati High Court issued the following order on Jan. 6:

1. Heard Ms. N. Hawelia, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Addl. AG, Assam appearing for all the respondents.

2. The challenge in the present writ petition is to an order dated 27-12-2012 passed by the Superintendent of Taxes, Khanapara Check Post, Guwahati, Assam, compounding the offence involved under Section 85(1)(n) of the Assam Value Added Tax Act, 2003 (in short the Act of 2003), exercising the delegated power under Section 89 of the Act of 2003 and requiring the petitioner to deposit an amount of Rs. 8,99,196/- (Rupees Eight Lakhs Ninety Nine Thousand One Hundred Ninety Six) by way of composition of the said offence as alleged against the it. The challenge primarily is on the ground that under the provision of Section 89 of the Act of 2003, the Superintendent of Taxes is not empowered to compound an offence under the Act.

3. The petitioner/ Company is a transporter and had entered into an agreement with the Bharti Hexacom Ltd., for transportation of its goods within the Northeastern region and also outside the region. In connection with transportation agreement entered into by the petitioner/ Company with the Bharati Hexacom Ltd., two trucks bearing No. AS-01W6531 and AS-01AC-9308 were loaded with goods of the Bharti Airtel Ltd. purportedly for transportation to Andhra Pradesh on stock transfer basis. The loading of the said truck was made at Meghalaya. While crossing the Khanapara Check Post, the said trucks were come to be detained and the drivers were issued with notices requiring production of supporting documents in connection with the transportation of goods by the said trucks. The authorized representative of the petitioner/ Company submitted a representation before the Superintendent of Taxes, Khanapara Check Post, Guwahati, Assam, i.e. the respondent No. 3 clarifying the nature of the goods being transported and praying for issue of transit pass. The respondent authorities not being satisfied with the clarification given by the petitioner/ Company, proceeded to issue a show-cause notice to the petitioner/ Company on 19-12-2002, demanding an amount of Rs. 35,96,783/- (Rupees Thirty Five Lakhs Ninety Six Thousand Seven Hundred Eighty Three) being the tax and penalty applicable. The said notice was replied to by the authorized representative of the Company. Thereafter, vide notice dated 28-12-2012, the Superintendent of Taxes, Khanapara Check Post, Guwahati, Assam, by projecting that the two trucks involved coming from the Byrnihat on being intercepted had produced computer printout of "NonReturnable Gate Pass-cum- Delivery Challan" bearing No. 1245 dated 12-12-2012 showing transportation of equipment involved valued at Rs. 50,000/- (Rupees Fifty Thousand) only (for both trucks) within Assam by Bharti Airtel Ltd., held that the consignment involved was not supported by any tax clearance certificate as required under the provision of Rule 41(9) of the Assam Value Added Tax Rules, 2005 (in short the Rules of 2005). It was further projected that the Bharti Hexacom Ltd. as well as Bharti Airtel Ltd. had given a statement to the effect that the "Non-Returnable Gate Pass-cum-Delivery Challan" produced at the Check Post were not generated by them. It was also projected that the goods under seizure, were dispatched by Bharti Hexacom Ltd. from Meghalaya to Bharti Airtel Ltd. at Andhra Pradesh pursuant to inter-State sale and such transaction was supported by an invoice dated 06-11-2012 for an amount of Rs. 1,79,83,912/- (Rupees One Crore Seventy Nine Lakhs Eighty Three Thousand Nine Hundred Twelve) and a NoObjection Certificate of the Meghalaya Sales Tax Authority dated 10-11-2012. The "NonReturnable Gate Pass-cum-Delivery Challan" as produced having shown "Intra-State" movement of goods within the State of Assam instead of "Inter-State" movement of goods from Meghalaya, an offence was held to have been committed by the petitioner/ Company knowingly preparing/ producing incorrect/ forged documents under the provision of Section 85(1)(n) of the Act of 2003.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=eISc8sUCYnQFBVP%2BVeJCOCg3FuvAJ%2B6Eb9km1mDFm43quLaNzQOQLT1YBAePY4jR&caseno=WP(C)/3469/2017&cCode=1&cino=GAHC010026232017&state_code=6&appFlag=)

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