2015 (6) TMI 664 - HC - VAT and Sales Tax

Levy of turnover tax - Section 10A - turnover tax was leviable only on turnover of sales and purchase above ₹ 50 lakhas. - total turnover including branch transfer outside Gujarat was ₹ 2,38,70,378. The assessing authority has allowed branch transfer of ₹ 2,06,45,800 and ₹ 20,80,022 as interstate sales - Held that - Tribunal has not committed any error in passing the impugned judgment and order. The learned Tribunal has dealt with all the issues with respect to turnover the tax levied under Section 10A; interest charged under Section 47(4A)(a); interest charged under Section 47(4B) and penalty levied under Section 45(6) of the Act in extenso. Levy of interest - Held that - The learned Tribunal has specifically observed and held against the assessee and in favour of the Government that the ad-hoc payment cannot be said to be payment made under Sub-Sections (1), (2) or (3) of Section 47 of the Act. However, it is further observed that the interest so levied, would be limited from the date of expiry of time prescribed to the date when the ad-hoc payment was made, subject to however that the difference of tax paid and tax assessed exceeds 10% of the tax paid. - there is no substance in the main tax appeal and the impugned judgment and order passed by the learned Tribunal is not required to be interfered with by this Court, to issue Rule in the present application for condonation of delay, call upon the respondent, to condone the delay and thereafter, to dismiss the appeal would, as such, be exercise in futility or the same be unnecessary burden upon the respondent. - Decided against Revenue.

Issues Involved:

1. Condonation of delay under Section 5 of the Limitation Act.
2. Deletion of turnover tax under Section 10A of the Act.
3. Levy of interest under Section 47(4A) of the Act.
4. Adjustment of ad-hoc payments under Section 47(4B) of the Act.
5. Reduction of penalty under Section 45(6) of the Act.

Detailed Analysis:

1. Condonation of Delay:
The applicant, the State of Gujarat, requested the condonation of a 119-day delay in filing a tax appeal against the judgment of the Gujarat Value Added Tax Tribunal. The court assessed the merit of the appeal to determine if issuing a Rule for condonation would be futile. Upon review, the court found no substance in the main tax appeal, thus dismissing the application for condonation of delay as it would impose an unnecessary burden on the respondent.

2. Deletion of Turnover Tax:
The Tribunal had deleted the turnover tax levied under Section 10A, as the appellant's net turnover was below the threshold limit of Rs. 50,00,000. The Tribunal noted that the total turnover was Rs. 2,38,70,378, with significant deductions for branch transfers and interstate sales, leaving a net turnover of Rs. 11,40,556, which did not attract turnover tax. The court upheld this finding, agreeing that the turnover tax of Rs. 15,050 was not leviable.

3. Levy of Interest Under Section 47(4A):
The Tribunal addressed the issue of interest levied on ad-hoc payments. The appellant had paid Rs. 3,05,168 under compulsion without it being recorded in returns. The Tribunal held that interest was payable on such ad-hoc payments but only until the date of payment. The court concurred with the Tribunal's interpretation that ad-hoc payments do not align with Sections 47(1), (2), or (3) and that interest should be calculated until the date of such payment, provided the difference between tax paid and assessed exceeded 10%.

4. Adjustment of Ad-hoc Payments Under Section 47(4B):
The Tribunal found that Section 47(4B) was not a charging provision but a mechanism for adjusting payments. Since the ad-hoc payment was not against any assessed or quantified liability, it could not be adjusted against interest or penalty. The court agreed with the Tribunal's decision to remove the interest levied under Section 47(4B), as the ad-hoc payment was not made against any specific liability.

5. Reduction of Penalty Under Section 45(6):
The Tribunal reduced the penalty from the original amount to 20% of the tax demand of Rs. 2,81,428. It considered the appellant's payment of the entire tax before assessment and the uncertainties surrounding Section 15B as reasonable causes. The court upheld this discretionary reduction, finding no error in the Tribunal's decision.

Conclusion:
The court found no errors in the Tribunal's judgment, which comprehensively addressed all issues. The Tribunal's decisions on turnover tax, interest levies, ad-hoc payment adjustments, and penalty reductions were upheld. Consequently, the application for condonation of delay and the tax appeal were dismissed, along with the associated stay application.

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