Nasiruddin Biswas Vs. Chairman, National Board of Revenue and others

Nasiruddin Biswas

 Vs.

Chairman, National Board of Revenue and others

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Adul Matin J

Nasiruddin Biswas…………..Petitioner

Vs.

Chairman, National Board of Revenue and others……Respondents

Judgment

July 27, 2008.

Lawyers Involved:

Tanjib-ul-Alam, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioners.

Md. Ibrahim Khalil, Advocate-on-Record-For the Respondents.

Civil Petition for Lave to Appeal No. 591 of 2007.

(From the judgment and order dated 23.04.2005 passed by the High Court divi­sion in Writ Petition No. 6117 of 2002).

Judgments Md. Tafazzul Islam J. – This Petition for leave to appeal is directed against the judgment and order dated 23.04.2005 of the High Court Division passed in Writ Petition No. 6117 of 2002 of discharg­ing the Rule which was issued calling upon the respondent to show cause as to why the office order under Memo No.4th /A(6)-18 Mullo-Goshona/Bibidh/ 2001/ 2087 dated 19.09.2002 (Annexure-G) and the office order under Memo No. 4th /(6)-187 Mulla-Ghosona Bibidha 72001/1221 dated 09.06.2002 (Annexure-C), in so far as it relates to the charge of evasion, should not be declared to have been passed without lawful authority and are of no legal effect and as to why the respondents should not be directed to change the name and business place of the petitioner in terms of annexure F-I.

2. The petitioner filed the above writ petition on the averments that he, on 22.11.19991, established a printing sec­tion of Nasir Biri Industry Ltd and on the same date the said press section was enlisted in Form VAT-8 and the petition­er used to pay Tk.10,000/-annually as turnover tax as determined in accor­dance with the Value added Tax Act, 1991 (VAT Act, 1991) and the Rules framed there under upto the year 1993-944 meanwhile and inspection as made in terms of which and office order was issued under Memo dated 14.12.1993 asking the petitioner to pay Tk.5,000/- more in addition to Tk. 10,000/- in respect of the year 1993-94 and it was paid; subsequently on the basis of fur­ther inspection of the press section, inspection report was given and thereby Memo dated 19.06.1994 the petitioner was directed to pay 2% turnover tax on the printing charge which the petitioner paid and subsequently, as directed on 11.07.1996, 4% turnover tax was paid and then the said turnover tax was enhanced up to 4.5% by office order dated 03.06.1997 and the petitioner paid the same upto 04.09.2000, that is, till the registration of the press section under Form VAT-6 as the service of the said Nasir Biri Industry Ltd did not exceed 15,000,00/00 as has been shown in the writ petition; however after another inspection held during 12.10.1998 to 15.10.1998 by Memo dated 09.06.2002 charge was brought against the petition­ers to the effect that he evaded payment of VAT to the tune of Tk.7,71,450/00 during the period from 1997-98 to 1998-99 and then charge was brought against the petitioner for evasion o& payment of VAT to the tune of Tk. 17,78,535/32 upto the month of August, 2000 and in response the petitioner, on 31.07.2001, made prayer to the Commissioner of Customs, Excise, VAT, Jessore for exemption from payment of the afore­said amount of Tk. 17,78,435.32 assert­ing that he used to pay the turnover tax in terms of the VAT Act, 1991 and VAT Rules and he on his own option on 05.09.2000 made a prayer for enlistment of the said Nasir Biri Industries Ltd to pay tax under Form VAT-6 which was allowed on 29.01.2001 and the petition­er had been paying VAT under the said Form of VAT-6. Thereafter, on 20.06.2002, the petitioner made a prayer to the Deputy Commissioner of Customs, Excise and VAT Division, Kushtia, the writ respondent No. 6, for changing the place of business and also the legal identity of the industry in the name of Biswas printing and Packaging Ltd from that of Nasir Biri Industries Ltd. but the respondent No. 6, by Memo dated 19.09.2002, rejected the above prayer being an enlisted person, used to pay turnover tax sometimes at enhanced rate from time to time to time in terms of the relevant provisions of the VAT Act, 1991 and VAT Rules and accordingly the charge made against him for evasion of payment tax is violative of the said Act and the Rules and that Nasir Biri Industry Ltd. was registered and enlist­ed thereto in Form VAT-8 on 22.11.1991 and it cleared up all the dues which were included in the charge and the said industry at its own option registered and enlisted itself in Form VAT-6 on 29.01.2001 on the basis of the value of service and paid up all the dues as deter­mined and, as such, the charge of eva­sion of dues to the tune of Tk.17,78,435 has been made without jurisdiction and accordingly the respondents are required by law to allow the prayer of the petitioner for changing the place of business and the legal identity of the petitioner filed by way of declaration in Form VAT-9.

3. The respondent No. 1 contested the Rule and filed by affidavit-in-opposition denying the material allegations and contending that VAT System is a modern concept in the taxation system of the world and it is also an indirect tax being substituted in Bangladesh in the year 1991 in place of Sales Tax and accord­ing to the provisions as laid down in VAT Act, 1991 the imposition of turnover tax or VAT is dependant upon the ceiling or volume of turnover of the product and the ceiling changed from time to time giving cause to decide as to whether it would be turn over tax or VAT and actually, on the basis of that ceiling or turnover of the Press Section of Nasir Biri Industry Ltd, the rate of turnover tax was imposed at first @ 2% and then 4% and thereafter due to enhancement of the turnover the said Press Section of the above Industry came into the network of VAT and VAT Registration was allowed and then VAT @ 15% was imposed upon the Press Section of the above Industry in place of turnover tax @ 4% and so no illegality was committed in demanding the evad­ed VAT and in fact demand vide notice dated 31.05.1999 was also issued on Nasir Biri Industries Ltd for payment of Government dues amounting to Tk.7,53,545.23 and moreover after giv­ing personal hearing to the concerned management of the petitioner, demand notice was issued.

4.  We have heard the learned counsel and perused the impugned judgment and order of the High Court Division and other connected papers.

5. As it appears the High Court Division discharged the Rule holding that the whole grievance of the petitioner as to the first part of the Rule is that it having already paid turn over tax as fixed by the VAT authority, the claim if unpaid Government dues on the ground of eva­sion of the payment of VAT is absolute­ly illegal and malafide as Annexure J, J-1, J-2 and K series clearly show that the petitioner paid turnover tax for the peri­od for which claim of unpaid govern­ment dues was made and as such, the impugned demand has got no sanction in the eye of law and in paragraph 4 of the writ petition it has been categorical-VI Ltd. but the respondent No. 6, by Memo dated 19.09.2002, rejected the above prayer being an enlisted person, used to pay turnover tax sometimes at enhanced rate from time to time to time in terms of the relevant provisions of the VAT Act, 1991 and VAT Rules and accordingly the charge made against him for evasion of payment tax is violative of the said Act and the Rules and that Nasir Biri Industry Ltd. Was registered and enlist­ed thereto in Form VAT-8 on 22.11.1991 and it cleared up all the dues which were included in the charge and the said industry at its own option registered and enlisted itself in Form VAT-6 on 29.01.2001 on the basis of the value of service and paid up all the dues as deter­mined and, as such, the charge of eva­sion of dues to the tune of Tk. 17,78,435 has been made without jurisdiction and accordingly the respondents are required by law to allow the prayer of the petitioner for changing the place of business and the legal identity of the petitioner filed by way of declaration in Form VAT-9.

3. The respondent No. 1 contested the Rule and filed by affidavit-in-opposition denying the material allegations and contending that VAT System is a modern concept in the taxation system of the world and it is also an indirect tax being substituted in Bangladesh in the year 1991 in place of Sales Tax and accord­ing to the provisions as laid down in VAT Act, 1991 the imposition of turnover tax or VAT is dependant upon the ceiling or volume of turnover of the product and the ceiling changed from time to time giving cause to decide as to whether it would be turn over tax or VAT and actually, on the basis of that ceiling or turnover of the Press Section of Nasir Biri Industry Ltd, the rate of turnover tax was imposed at first @ 2%, and then 4% and thereafter due to enhancement of the turnover the said Press Section of the above Industry came into the network of VAT and VAT Registration was allowed and then VAT @ 15% was imposed upon the Press Section of the above Industry in place of turnover tax @ 4% and so no illegality was committed in demanding the evad­ed VAT and in fact demand vide notice dated 31.05.1999 was also issued on Nasir Biri Industries Ltd. for payment of Government dues amounting to Tk.7,53,545.23 and moreover after giv­ing personal hearing to the concerned management of the petitioner, demand notice was issued.

4.  We have heard the learned counsel and perused the impugned judgment and order of the High Court Division and other connected papers.

5. As it appears the High Court Division discharged the Rule holding that the whole grievance of the petitioner as to the first part of the Rule is that it having already paid turn over tax as fixed by the VAT authority, the  claim  if unpaid Government dues on the ground of eva­sion of the payment of VAT is absolute­ly illegal and malafide as Annexure J, J-1, J-2 and K series clearly show that the petitioner paid turnover tax for the peri­od for which claim of unpaid govern­ment dues was made and as such, the impugned demand has got no sanction in the eye of law and in paragraph 4 of the writ petition it has been categorically stated that the petitioner having been enlisted on 22.11.1991 in Form VAT 8, used to pay the turnover tax upto 04.09.2000, that is before registration in Form VAT-6, because the service value of the Press Section of the Industry did not exceed Tk. 15,00,00.00, and the said statement has not been denied by the respondents but the above grievance is not tenable as the respondents in their affidavit-in-opposition categorically stated that turnover tax or VAT is dependent upon the ceiling or volume of the turnover of the product and such ceiling changes from time to time giving rise to the issue as to whether it would be “turnover tax” or VAT and due to the enhancement of the turnover, the press section of the Industry came into the network of VAT and, as such, after allot­ment of VAT registration, VAT at the rate of 15% was imposed in place of turnover tax @ 4% and such demand was made and further the file produced by the relevant authority shows that a report was submitted on 27.06.2000 by the audit Team of the Head Quarter of the National Board of Revenue stating categorically that they found that the ceiling of the Press Section of the above Industry already exceeded “turnover tax” limit as allowed by law and be that as it may the demand notice vide Annexure ‘C’ was issued after giving personal hearing to the petitioner and thus the petitioner got ample opportuni­ty to controvert the allegation of non payment of VAT and moreover whether the turnover of the Press Section of the above Industry exceeded turnover limit is purely a question of fact which cannot be thrashed out in writ jurisdiction and so the best course open to the petitioner was to file appeal under section 42 of the VAT Act 1991.

6.  We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegali­ty or infirmity in the above decision so as to call for any interference.

The petitioner is dismissed.

Ed.

Source: VI ADC (2009) 587

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