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PEPSICO INDIA HOLDINGS versus THE STATE OF PUNJAB & ORS

High Court of Punjab and Haryana, Chandigarh

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Pepsico India Holdings v. The State of Punjab & Ors - CWP-15796-2006 [2006] RD-P&H 4760 (25 July 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

CWP No.15796 of 2006

Date of decision: 06.07.2006

Pepsico India Holdings (P) Ltd.

----Petitioner

Vs.

The State of Punjab and another.

----Respondents

CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE RAJESH BINDAL

Present: Mr. K.L. Goyal, Advocate

for the petitioner.

Mr. Amol Rattan Singh, Addl.A.G. Punjab.

---

ORDER:

The petitioner is a dealer under the provisions of Punjab Value Added Tax Act 2005 (for short "the VAT Act"). As against rate of tax specified in residual entry i.e. 12.5%, lower rate of 4% has been specified against Entry 88 of Schedule B which is as under:- Processed Fruits, Vegetables including Fruit jams, Jelly, pickle, fruit squash, paste, fruit drinks and fruit juice (whether in sealed container or otherwise)

The above entry was introduced with effect from 5.5.2005.

The assessing authority issued notice (Annexure P-1) dated 15.06.2005 alleging that tax deposited by the assessee by invoking the said entry, was short payment of tax due, as it was the residual entry which was applicable in petitioner's case. The petitioner gave a reply to the notice, which was not accepted and the provisional assessment order was passed under Section 30 of the VAT Act, holding that the Entry 88 was not applicable.

Learned counsel for the petitioner submitted that Entry 88 was clearly applicable to potato chips-the product in question and the view taken by the assessing authority was illegal. Alternatively, it was submitted that the jurisdiction to make provisional assessment could be invoked only in case of 'fraud', 'willful neglect with a view to evade or avoid payment of tax' or 'not paying the tax due'.

Learned counsel for the State, on the other hand, submitted that the Entry 88 could not be invoked as potato chips were not covered by the items mentioned in the said entry. It is also submitted that the jurisdiction under Section 30 was rightly invoked, as tax due under residual entry has not been paid and Entry 88 invoked by the petitioner was not applicable. Learned counsel for the State submitted that in any case, the petitioner had statutory remedy of appeal under Section 62 of the VAT Act where all contentions raised by the petitioner could be gone into.

After hearing learned counsel for the parties, we are of the view that arguments raised on behalf of the petitioner raise debatable issues and the petitioner has a remedy of raising these submissions before the appellate authority or during the course of regular assessment. Under the scheme of the VAT Act, it is clear that provisional assessment is pending final assessment. We, therefore, do not express any opinion at this stage on the contention whether potato chips will be covered by Entry 88 and whether jurisdiction under Section 30 could be invoked in the facts and circumstances of the present case.

In view of alternative remedy available to the petitioner, we relegate the petitioner to the alternative remedy. It is, however, made clear that if the petitioner prefers an appeal within one month from today, learned counsel for the State has fairly stated that the appeal will not be dismissed on account of limitation.

This writ petition is disposed of, accordingly.

( ADARSH KUMAR GOEL )

JUDGE

July 06, 2006 ( RAJESH BINDAL )

ashwani JUDGE

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Pepsico India Holdings v. The State of Punjab & Ors - CWP-15796-2006 [2006] RD-P&H 4760 (25 July 2006)

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Pepsico India Holdings v. The State of Punjab & Ors - CWP-15796-2006 [2006] RD-P&H 4760 (25 July 2006)