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| HC issues notice to government; stays impugned order | | | Early Times Reporter
Jammu | June 25
In a petition filed by Shri Mata Vaishno Devi Shrine Board through its Additional Chief Executive Officer MK Dwivedi seeking quashment of the order issued on February 7, 2007, issued notice to state of Jammu and Kashmir through Commissioner Secretary Finance, Commissioner Commercial Tax and deputy secretary Finance returnable within three weeks and in the meantime stayed the operation of the impugned order.
During the course of arguments, Sr. Adv UK Jalali submitted that unfortunately the respondent advised the Shrine Board during the time it was seeking certain clarification orally to get itself registered as a dealer under new VAT Act, the contours of which were not understandable even the officials of the department. Accordingly the board on a wrong advice got itself registered as a dealer under VAT Act, acting on the advise of the respondents official and deposited VAT on sales made prior to registration from its own funds and also started collecting VAT on sale of food and other related material through its view points and catering outlets on the way to Shrine after its registration. This was result of the wrong advice received by respondent department without consulting the legal advisor as the VAT Act being a new subject was not fully operationalized in its true letter and spirit. He said that after seeking advice subsequent to its registration as dealer under the circumstances; the Board could not be held as a dealer under JK VAT Act and thus cannot be made liable to pay the VAT. Mere registration of the petitioner Board under erroneous advice cannot per-se result into any binding and or liability to levy and payment to VAT. Even if for that matter, the Board has sought voluntarily, it would not render the Board liable under charging section if it is actually found that the petitioner Board could not be held to be dealer with the meaning in terms under the Shrine Act, as the Shrine Board does not meet the parameter and the criteria of person as defined under VAT Act. Nor it is capable of carrying of business of selling etc in absence of any right of power conferred by the Act, therefore, any registration done under mistake of fact or law would not operate as a bar for questioning the registration done under wrong advice or even otherwise.
In the prayer seeking quashment the findings/ decision recorded by the respondent in letter No Et/Vat/123/2006 dated January 1, 2007 issued by the commissioner commercial taxes J&K and subsequent clarification No 20 dated February 20, 2007 be also quashed and also seeking directions to the respondents to refund all payment of VAT made by the Board under the mistake of fact with interest. JNF |
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