9911796707
TMI Blog1998 (1) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- Appeal dismissed. We find it difficult to accept the argument, for the power under section 43 can be invoked only in proceedings in appeal from an assessment order or otherwise in proceedings under the said Act. Necessarily, therefore, the imposition of the penalty is a part of such proceedings and cannot be regarded as a fresh assessment. In these circumstances, the limitations of time pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed by the assessing authority. 2.. Whether under the facts and circumstances of the case penalty imposed under section 43(1) read with section 9(2) of the Central Act was justified. 2.. The appellant s return was delayed by two months and seven days. The assessing authority, therefore, imposed a penalty of Rs. 4,000 upon the appellant. The appellant preferred an appeal before the Deputy Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed by the Deputy Commissioner. The Board rejected its contention and made the above reference to the High Court. The High Court came to the conclusion that section 38(5) was inapplicable but that the requirements of section 43 were met. The reference was, therefore, answered in favour of the Revenue. Section 38(5), so far as it is relevant, reads thus: 38(5) Subject to such procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of the tax which would have been avoided if the return furnished by the dealer had been accepted as correct. 4.. It is clear that the power under section 38(5) is to confirm, reduce, enhance or annul a penalty. It can only if a penalty has already been imposed by the assessing authority. Section 43 gives an additional power to the Commissioner or the appellate authority. It is to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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