Delhi Gujarat Bombay Goods Carriers Assistant Commercial Taxes ...

VATLaws (Readable Version) - Tuesday, June 25, 2013[2013] 57 VST 336 (Raj)[IN THE RAJASTHAN HIGH COURT]Delhi Gujarat Bombay Goods CarriersV.Assistant Commercial Taxes Officer, Flying Squad I, Rajasthan, JaipurVINEET KOTHARI (DR.) , JMarch 30, 2011HF ♦ Assessee, including dealer (Registered or Unregistered)LUXURY TAX--TOBACCO AND ITS PRODUCTS--PENALTY--ACT STRUCK DOWN AS BEYONDCOMPETENCE OF LEGISLATURE--PENALTY NOT LEVIABLE--RAJASTHAN SALES TAX ACT, 1994 (22 OF1995), S. 78(5)--RAJASTHAN TAX ON LUXURIES (TOBACCO AND ITS PRODUCTS) ACT, 1994, SS. 31,45--CONSTITUTION OF INDIA, SCH. VII, LIST II, ENTRY 62.Where penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 read with sections 31 and 45 of theRajasthan Tax on Luxuries (Tobacco and its Products) Act, 1994 was imposed on the petitioner-transporter,found to be carrying “gutkha”, a tobacco product, covered by the provisions of the Luxury Tax Act:Held, that the Rajasthan Tax on Luxuries (Tobacco and its Products) Act, 1994 having been struck down bythe Supreme Court as being violative of entry 62 of List II of the Seventh Schedule to the Constitution of Indiano such penalty under that Act could be imposed.Dinesh Tobacco Industries v. State [2005] Tax Up-Date 347 (para 2) and Godfrey Phillips India Ltd. v. State ofU. P. [2005] 139 STC 537 (SC); [2005] 4 RC 186 (para 2) referred to.S.B. Sales Tax Revision Petition No. 35 of 2006 decided on March 30, 2011Nitin Jain for the petitionerAchintya Kaushik on behalf of R.B. Mathur for the respondentCases referred to :Dinesh Tobacco Industries v. State [2005] Tax Up-Date 347 referred toGodfrey Phillips India Ltd. v. State of U.P. [2005] 139 STC 537 [2005] 4 RC 186 referred to--------------------------------------------------DR. VINEET KOTHARI J.-In this revision petition, the challenge hasbeen made to the penalty under section 78(5) of the RST Act, 1994 readwith sections 31 and 45 of the Rajasthan Tax on Luxuries (Tobacco and itsProducts) Act, 1994 was imposed on the petitioner-assessee/transporter,found to be carrying "gutkha", a tobacco product, covered by the provisionsof the aforesaid Luxury Tax Act.The learned counsel for the petitioner-assessee as well as learnedcounsel for the Revenue fairly submitted that the said Rajasthan Tax onThis copy was printed from VATLaws licensed to: R.S. GoyalPage No: 336

VATLaws (Readable Version) - Tuesday, June 25, 2013Luxuries (Tobacco and its Products) Act, 1994 has been struck down by theapex court in the case of Godfrey Phillips India Ltd. v. State of U.P.reported in [2005] 139 STC 537 (SC); [2005] 4 RC 186; [2005] 2 SCC 515as being violative of entry No. 62 of List II of the Seventh Schedule to theConstitution of India and, therefore, no such penalty with the aid of section78(5) of the RST Act under the said luxury tax could be imposed on thepetitioner-assessee. They relied upon the Division Bench judgment of thiscourt in the case of Dinesh Tobacco Industries v. State reported in [2005]Tax Up-Date 347.In view of the aforesaid judgments of the apex court and the DivisionBench of this court, the impugned order of the Tax Board dated February 17,2006 and order passed by the lower authorities below cannot be sustainedand the present revision petition filed by the assessee deserves to be allowed.Consequently, this revision petition of assessee is allowed and theimpugned order dated February 17, 2006 passed by the learned Tax Boardin Appeal No. 58/2005/Jaipur and order dated April 16, 2004 passed byDeputy Commissioner (Appeals) I, Commercial Taxes, Jaipur in AppealNo. 315/RST/ACT0/FS/III-Raj/JAIPUR/02-03 as also the impugned penaltyorder dated September 16, 2002, are set aside.Page No: 337This copy was printed from VATLaws licensed to: R.S. Goyal