2013 (5) TMI 115 - HC - VAT and Sales Tax

Compounding of offence - KVAT Act - Held that - Taking note of the submission made by the learned counsel for the petitioner that the petitioner has already satisfied more than 50 % of the liability and since the matter has been entertained by the 3rd respondent leading to Ext. P6 order granting conditional stay, to strike a balance in between, this Court finds it fit and proper to modify the condition imposed vide Ext. P6. Accordingly, the petitioner is directed to satisfy a sum of One lakh Rupees and to furnish security for the balance amount, so as to avail the benefit of interim stay during the pendency of appeal. In view of the fact that the time granted by the appellate authority is about to expire, the petitioner is granted a further period of 10 days to satisfy the condition as aforesaid.

Summary

Issues:
1. Application for rectification of input tax credit.
2. Legality of penalty imposition.
3. Maintainability of appeal.
4. Modification of conditions for interim stay.

Application for rectification of input tax credit:
The petitioner, a dealer in cement, sought to compound an offense under Section 74 of the KVAT Act for the assessment year 2009-10. Subsequently, the petitioner filed an application for rectification regarding input tax credit, which was dismissed by the second respondent. The petitioner then filed an appeal and a petition for stay. The appellate authority directed the petitioner to satisfy a specific sum and furnish security for the balance amount to avail interim stay. The petitioner approached the High Court through a writ petition challenging the conditions imposed for stay.

Legality of penalty imposition:
The petitioner argued that the penalty was imposed without considering their eligibility for input tax credit, leading to the application for rectification. Reference was made to a Division Bench judgment stating that penalties based on 'estimated turnover' beyond a certain limit are incorrect. The Government Pleader contended that the petitioner's actions were wrong and illegal, as they had admitted guilt and availed compounding under Section 74. The rejection of the rectification application was justified, and the appeal filed by the petitioner was deemed not maintainable.

Maintainability of appeal:
The Government Pleader argued that the petitioner's actions, including the rectification application and subsequent appeal, were improper due to admitted guilt and the benefit of compounding already availed. Citing a previous court ruling, the Government Pleader asserted that the appeal was not maintainable. The court considered both sides' submissions and noted that the petitioner had satisfied over 50% of the liability. To strike a balance, the court modified the conditions for interim stay, directing the petitioner to pay a specific amount and provide security for the remaining sum.

Modification of conditions for interim stay:
The court modified the conditions for interim stay, directing the petitioner to pay a specified amount and provide security for the balance to avail the benefit of stay during the appeal process. The court emphasized that the appeal's merit would be considered by the third respondent in accordance with the law. Additionally, the petitioner was granted a ten-day extension to fulfill the modified conditions. The writ petition was disposed of, providing clarity on the conditions for interim stay and the appeal process.