High Court Division
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashfaqul Kamal J
Janata Insurance Company Ltd ….. Petitioner
vs
Commissioner, Customs, Excise and VAT, Dhaka and others…………..
…….. …. Respondents
Judgment
June 13th, 2013.
Value Added Tax Act (XXII of 1991)
Sections 37, 51(1) and 56
Suppression of fact-The suppression of fact is a heinous, detestable act, which cuts the very root of any claim made in any discipline, far less to say before a Constitutional Court. Therefore, caution goes without any controversy that suppression of fact vitiates everything. .. …. (8)
Orascom Telecom Bangladesh vs National Board of Revenue 63 DLR 442 rel.
Md Sadullah, Advocate-For the Petitioner
SM Moniruzzaman, Deputy Attorney-General with Khairun Nessa, Purabi Saha, Assistant Attorney-Generals-For the Respondents
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner, Janata Insurance Company Ltd., this Rule Nisi was issued calling upon the respondents to show cause as to why the impugned demand notice vide Nothi 4/Insurance/(6)245/VAT /93 Part-l/l071 dated 16-2-2005 (Annexure-A) demanding an amount of Taka 1,12,04,326.50 as VAT and additional tax issued by the Deputy Commissioner of Customs, Excise & VAT, Motijheel Division, Dhaka (Respondent No.2) shall not be declared without lawful authority and is of no legal effect. Their Lordships at the time of issuing Rule also observed :-
“It appears that impugned demand letter was issued by Mr Md Nur Mohd. Mahabubul Hoq, Deputy Commissioner of Customs, Excise and VAT, Dhaka South, Dhaka (respondent No.2) on 15-2-2005 claiming unpaid VAT for the period April, 1999 to December, 2001, thus apparently it appears to us that the demand was made after the period of 3 (three) years as provided in Section 55 of the VAT Ac.”
Their lordships further directed :
“The office concerned, that is, respondent No.2 is directed to show cause separately as to why he issued the demand notice after the expiry of three years. The reply must reach this Court within four weeks from the date of receipt of this order.”
2. That being the background let us now see the fact leading to the Rule. The petitioner is a Insurance Company incorporated under the Companies Act 1994. It has been stated in the petition that the Commissioner, Customs, Excise and VAT, Motijheel Division, Dhaka issued the impugned Notice demanding VAT on 16-2-2005 of Taka 1,12,04,326.50 with reference to the audit report of the Respondent
No.1, the Customs, Excise and VAT Commissionerate Dhaka (South), Dhaka which was communicated to the respondent No.2 on 2-4-2002. The said amount was claimed for the period from April, 1999 to December, 2001. In the said demand notice after giving the break up of the outstanding VAT recoverable from the petitioner a seven days notice under Section 55 of the VAT Act was given to pay the demanded amount with further caution to impose Section 56 of the VAT Act in case of failure together with a further notice as to why penal action shall not be taken against the petitioner under Section 37(2) of the Act (Annexure-A). The petitioner being aggrieved by the said impugned notice dated 16-2-2005 moved this Division and obtained the present Rule and order of stay contending several grounds.
3. Mr Md Sadullah, the learned counsel appearing for the petitioner after placing the petition, impugned order, affidavit-in-reply and other materials on record tried to impress upon us that the impugned notice of demand dated 16-2-2005 for the period April, 1999 to December, 2001 is completely barred by statutory period of 3 years under section 55(1) of the Act for which impugned demand notice is illegal void and have been issued without lawful authority and is of no legal effect. Substantiating his argument he further submits that by the impugned notice additional taxes were imposed under the provision of Section 37 of the Act but from the plain reading of the Section it is clear that under Section 37(2)ka ka such penalty can be imposed only if a person fails to pay VAT after getting demand notice as per VAT Rules. That being not done the impugned order cannot sustain. Further he contended several other grounds touching upon the different aspect and deviation on the part of the VAT authority in making the impugned demand.
4. Mr SM Moniruzzaman, the learned Deputy Attorney-General, on the other hand, by filing affidavit-in-opposition vehemently opposes the Rule. He has drawn our attention to Annexure-3 of the affidavit-in-opposition and submits that back in the year 2002 (6-2-2002) the VAT authority issued notice of demand claiming the questioned amount which has been imposed upon the petitioner and submits that the VAT authority made demand well within the time i.e. within 3 years as under Section 55 of the Act. This particular fact, as the learned Deputy Attorney-General submits has been suppressed at the time obtaining Rule by the petitioner. In affidavit-in opposition a details statement in this aspect by further explaining the situation has also been detailed. In support of his contention, the learned Deputy Attorney-General relies on the decision of Orascom Telecom Bangladesh vs National Board of Revenue reported in 63 DLR 442.
5. Further the petitioner by filing Affidavit-in-reply dated 11-6-2013 has brought to our notice the some facts which we have perused carefully.
6. Be that as it may, we have heard the learned counsel for the petitioner and the learned Deputy Attorney-General for the respondents at length and considered their respective submissions. Let us now first revert to the original Rule issuing order where their Lordships at the time of issuing Rule in their anxiety observed that the impugned notice is expressly barred under law and at once directed concerned VAT officer to show cause separately why they did that.
7. Surprisingly and shockingly we have found from the affidavit-in-reply dated 11-6-2013 (Annexure-‘E’) filed by the petitioner that he in it’s letter head wrote a letter dated 18-4-2001 from where it reveals that the petitioner was well aware of the impugned demand made against him. To be more precise in that letter the demanded amount of Taka 1,12,04,326.50 vividly appears which can also be seen in the impugned order. This proves that the petitioner knowing fully well about the demand made in the year 2002, against which he also responded in the year 2003, suppressed the said fact and obtained Rule and order of stay by making a case that the impugned demand dated 16-2-2005 is a time barred one being clearly violative of Section 55 of the VAT Act as the demand of April, 1999 to December 2001 was made clearly after three years.
8. The suppression of fact is a heinous, detestable act, which cuts the very root of any claim made in any discipline, far less to say before a Constitutional Court. The Appellate Division as well as this Division came down heavily on this issue on several occasions. Therefore, caution goes without any controversy that suppression of fact vitiates everything. Here, in the petition we have found a clear concealment of fact in that the petitioner though was well informed about the notice of demand made in the year 2002 but by suppressing the same he obtained the Rule and order of stay of the impugned notice as a result of which invaluable years have gone passed in vain as the VAT authority could not proceed to recover the demanded amount owing to the order of stay. This is unpardonable. We abhor and deprecate this sort of act very bluntly.
9. Under the circumstances, we are not at all required to address any other points pressed into service by the petitioner since the entire case has been vitiated simply on the point of suppression of fact as discussed above.
10. The inevitable result, that follows that this Rule should be discharged with cost.
In the result, the Rule is discharged with cost. The order of stay granted earlier by this Court is recalled and vacated.
