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TMI Blog1974 (11) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962-63 and held that the appropriate rate was 7 per cent. Thereafter, for subsequent assessment years a rate of 7 per cent was charged in respect of the transaction of tooth-paste and toothbrushes. The petitioner filed appeals and for the payment of tax he obtained a stay order from the revising authority. For the assessment year 1967-68, the assessment order was passed by the Sales Tax Officer on 29th August, 1968. It was served upon the petitioner on 28th September, 1970, and the notice of demand was Issued on 28th October, 1970. An appeal against this assessment order was filed on 22nd October, 1970. The petitioner made an application to the State Government on 16th December, 1970, for staying the realisation of tax till the disposal of the appeal. The Government granted this request and directed the Commissioner of Sales Tax for necessary action. The Commissioner of Sales Tax stayed the realisation of tax and sent necessary direction to the Sales Tax Officer. The stay order was later on revoked by an order dated 18th September, 1971, by the U.P. Government. This order was, however, modified by another order of the U.P. Government dated 27th September, 1971, whereby the stay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in that case was not liable to pay penal interest for the period during which the realisation of tax remained stayed under the orders of the Commissioner. The reasonings upon which the Bench based its decision is contained in paragraphs 6 and 7 of the judgment, which are reproduced below: "6. Now, penal interest is payable under clause (1-A) of section 8 of the U.P. Sales Tax Act at the rate of 18 per cent on the sales tax arrears with effect from 1st February, 1964. A perusal of clause (1-A) of section 8 shows very clearly that penal interest at the rate of 18 per cent is chargeable from a defaulter, if the tax mentioned in the notice of demand issued under sub-section (1) of section 8 remains unpaid for six months after the expiry of time specified in the notice of demand. If an assessee is not a defaulter, no penal interest can be charged from him. 7.. Under sub-section (4) of section 8, the assessing authority may, at any time or from time to time, amend or revoke any notice of demand or extend the time for making the payment in pursuance of the notice. The Sales Tax Officer is an assessing authority. Thus, if the Sales Tax Officer extends the time for payment, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er staying recovery proceedings passed by an assessing authority, or the Commissioner of Sales Tax, or the State Government in law amounts to extending the time for making payment in pursuance of the notice or amending the -notice within the meaning of section 8(4) of the Act? (2) Whether the period during which such an order of stay is In operation is liable to be excluded for purposes of computing penal interest under section 8(1-A) of the Act?" The view taken by this court in the case of Ajai Kumar Ashok Kumar(1), is supported by two earlier decisions of this court in the cases of Civil Misc. Writ No. 1063 of 1970 (decided on 2nd August, 1971) and Civil Misc. Writ No. 2776 of 1970 (decided on 1st December, 1971). In all these three cases the view taken is that whenever a Sales Tax Officer or the Commissioner of Sales Tax extends time for payment of the tax it amounts to modification or amendment of the notice of demand so far as the time fixed for the payment of tax is concerned and, as such, the assessee does not become defaulter liable to pay interest under section 8(1-A) until six months from the extended time. There is no discussion in the case of Haji Lal Mohammad(2) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct shall be paid within thirty days from the date of service of the notice of assessment and demand and in such manner as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall be recoverable in accordance with sub-section (8)." It was argued that as a result of the amendments the Sales Tax Officer as also the Commissioner of Sales Tax have lost the power to extend the time for payment of tax, as specified In the notice of demand and similarly the time for payment of tax is no longer left to the discretion of the Sales Tax Officer but a fixed period of 30 days has been allowed so that the Sales Tax Officer can only allow a period of 30 days and no more for payment of tax. The contention is that after these amendments the Sales Tax Officer or the Commissioner have been divested of their jurisdiction to extend time and, as such, the question as to whether such extension amounts to amendment of the notice of demand within the meaning of section 8(4), as it stood before its amendment, does not survive. The contention of the learned counsel for the petitioner is that notwithstanding these amendments the Sales Tax Officer and by v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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