Value Added Tax Act (XXII of 1991) | Case Reference

Value Added Tax Act (XXII of 1991) 

Second Schedule

The BTRC being Government organiza- tion is also exempted from payment of VAT under Clause-7 (অন্যান্য সেবা) (ঘ) of the second schedule of the Act and compulsory VAT registration is not necessary for BTRC.

29 BLC (AD) (2024) 26

Section 3(1), 5

The only grievance agitated by the pe- titioner in this writ petition is that BTTB being registered under Section 15 of the VAT Act, 1991 as VAT payee, cannot collect VAT from its subscribers and, if VAT is at all payable, it is payable by the service provider, i.e. BTTB itself, pursuant to the provisions of the VAT Act, 1991. Azaharuddin Ahmed vs. T.N.T. Board (Mohammad Fazlul Karim J) (Civil) 236

Section 4

The High Court Division, after hear- ing, discharged the Rules holding that the bills of entries having been submit- ted after publication of the SRO No. 252 dated 6.8.2000 in the Official Gazette, under section 4(2) of the VAT Act, 1991, the imported polyethylene pellets are liable to be assessed with VAT as the determining dates for as- sessment of duties including VAT on those are the dates of presentation of bills of entries and the writ petitioners presented the respective bills of entries after the notification being SRO No. 252 dated 6.8.2000 came into opera- tion. Mr. Sharifuddin vs. Commissioner of Customs (Md. Tafazzul Islam J) (Civil) 9 ADC 721

Section 6

There is no allegation that the writ-pe- titioner evaded payment of any VAT at the time of supply of the goods, as en- visaged under Section 6 of the VAT Act. The allegation of evasion of VAT was made on the basis of consumption of electricity. Commissioner of Customs vs. Daulatpur Steel Re-rolling Mills (A.B.M. Khairul Haque J) (Civil) 9 ADC 878

Section 9(1)(Uma)

'Spectrum' comes within the definition of infrastructure (অবকাঠামো) and thus VAT paid by the cellular mobile companies on the spectrum fees and the license fees are not rebatable. Section 9 does not require the infrastructure to be tangible as, such the argument placed by the learned Advocate for the cellular phone companies that infra- structure cannot intangible is not correct inasmuch as spectrum provided to the cellular mobile phone companies are a range of wave of radio frequencies which is uniquely distinguishable by intangible boundaries that is why spectrum allotted to one cellular phone company cannot be used by others. The cellular phone companies cannot provide service without allocation of spectrum. 29 BLC (AD) (2024) 26

Section 9(2ka)/42-

The High Court Division observed- "The present writ petition without preferring any objection/appeal under section 9(2ka)/42 of the VAT Act is not also maintainable." We find no reason to interfere with the impugned judgment of the High Court Division. .....Aftab Auto Ltd. =VS= Customs, Excise & VAT, Tejgaon Circle-1, [1 LM (AD) 177]

Section 13

The petitioner had received duty draw back by making false statements and the petitioner illegally accepted draw- back of Taka 12,41,429/- against cus- toms duty. Sunshine Cables vs. National Board of Revenue (Md. Muzammel Hossain J) (Civil) 10 ADC 676

Section 13

Sub-section 1 of section 13 of the Value Added Tax, the respondent ap- plied for adjustment of the taxes and duties paid of the time of importing hot rolled sheets as raw materials. National Board vs. PHP Cold Rolling Mills (A.B.M. Khairul Haque J) (Civil) 8 ADC 132

Sections 26 and 55

Under the Act, the authority concern if comes into possession of any information whatsoever as to evasion of VAT it has the authority to conduct inspection/audit under section 26 of the Act upon forming a team and if satisfied on the report so has been submitted thereto, may initiate process under section 55 of the Act for making demand of the alleged evaded portion of VAT, but said demand can not be made final unless a notice is served upon the incumbent concern to that effect and if they dispute the said alleged demand, to provide personal hearing. [73 DLR 488]

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. Nasiruddin Biswas vs. Chairman, National Board of Revenue (Md. Tafazzul Islam J) (Civil) 6 ADC 587

Section 26(1) and 48- We find from the judgment of the High Court Division  that upon scrutiny of section 26(1) and 48 of the VAT Act, 1991 it found that responded No.2 and Al-haj Taibur Rahman did not have the authority to make any search and seizure. It was further observed that section 48 of the Act does not empower the NBR to authorize respondent Nos. 1 and 2 to make such search and seizure as they are not VAT officers. Hence, the report dated 28.03.2002 emanating from such illegal search and seizure prepared and issued by respondent No.2 are illegal, without jurisdiction and coram non judice.

We are of the view that the High Court Division was correct in holding that neither respondent No.2 nor the said Al-haj Md. Taibur Rahman were authorized under section 26 or section 48 of the Act to enter the premises of the respondent company for the purpose of search and seizure. ...Customs Intelligence and Investigation, Dhaka VS Opsonin Chemical Industries Ltd., [10 LM (AD) 270]

Section 26(1) and 48- Section 26(1) of the Act permits any VAT officer authorised by the Commissioner or Divisional Officer to conduct search and seizure upon serving notice. The proviso to the said section permits the Commissioner or Divisional Officer, upon giving reasons, to authorize any VAT Officer not below the rank of Superintendent to carry out search and seizure without giving notice. In the facts of the instant case we note that writ respondent No.2, who conducted the search and seizure was a Joint Director of Customs Intelligence and Investigation and not a VAT Officer. We further note that Md. Taibur Rahman, who headed another team and conducted search and seizure of the appellant company, was a Superintendent of Customs Excise and VAT.

Clearly section 48 of the Act provides that NBR can direct search and seizure to be conducted by a VAT Officer not below the rank of Assistant Commissioner to carry out search and seizure. ....Customs Intelligence and Investigation, Dhaka VS Opsonin Chemical Industries Ltd., [10 LM (AD) 270]

Sections 37, 42 and 55

The question involved in these two leave petitions squarely came up for consideration by this Division in Civil Petition for Leave to Appeal No.896 of 2009 and in that case after considering the provisions of sections 37, 42 and 55 of the VAT Act, 1991 and sections 193, 194, 196, 196A, 196B, 196C of the Customs Act, 1969 this Division held that "Therefore, the intention of the leg- islature is very clear that in order to file an appeal under section 42 of the VAT Act the percentage of the demanded VAT and or the penalty as mentioned therein must be deposited at the time of filing the appeal and in absence of such deposit an appeal cannot be accepted. M/S. Alfa Tobacco vs. Customs, Excise and VAT Appellate Tribunal (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 181

Section 55-

When the entire action of the VAT authority appears to be illegal, mala fide and arbitrary on the face of the record, invoking article 102 of the Constitution, under such circumstances, without preferring statutory appeal, is no bar. Thus we are view that the High Court Division correctly held that the writ petition was maintainable and accordingly disposed of the matter. But the disposal in respect of asking the appellant to pay VAT and supplementary duty for the period from February, 2012-2013 to October, 2013- 2014 is not in accordance with law.

Thus it is clear that since there is violation of law and fundamental right of a citizen in charging VAT and supplementary duty (SD) giving retrospective effect beyond the provision of law and since there is violation in demanding such duty/tax it cannot be said that the writ petition was not maintainable. These two civil appeals are allowed without any order as to costs. ...British American Tobacco Bangladesh. Company Ltd. =VS=NBR, [10 LM (AD) 257]

Section 55

It appears that the predecessor of the petitioner company did not raise any objection against the outstanding arrear VAT liability demanded by the respondent authority as contained in Annexure-El on the ground of non- compliance of procedure of the VAT Act before making the demand. In the circumstances of the case after submis- sion of the Bank Guarantee No. 101TS1241LG07 dated 07.05.2007 for Tk.2,75,42,815.02 supported by an unconditional undertaking by all the directors of the petitioner company against the outstanding VAT liability of Tk.2,75,42,815.02 the claim for release of the Bank Guarantee is not tenable in law. However, the petitioner company  can claim refund of any mistaken pay- ment or excessive payment in respect of VAT turnover tax or any other dues if any to the respondent authority as envisaged in Section 67 of the VAT Act. Nuvista Pharma Ltd. vs. Chair. man, National Board of Revenue (Md. Muzammel Hossain J) (Civil) 10 ADC 656