9911796707
TMI Blog2013 (3) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) or the Tribunal. Since such issue was never raised before the Tribunal, there is no discussion in this regard in the order of the Tribunal. Consequently, such question did not arise out of the impugned order of the Tribunal and as a natural corollary, no such question was framed by this court while admitting the appeal and deciding the same. Even before this court, such issue was never raised nor was any request made for framing a question of law in this regard. No request was made for grant of the benefit under the proviso to Section 11AC of the Act at the time when the appeal was being allowed. Under the circumstances, no such relief had been granted to the applicant. The said issue is, therefore, a debatable one. Thus, the relief claimed by the applicant in the present application involves a debatable issue as to whether such relief could be granted by the court in a tax appeal wherein no question of law had been formulated in respect of the issue involved in the present case. Thus, the said decisions have been rendered in appeals wherein such controversy was directly in issue, which is not so in the facts of the present case. Under the circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Section 11A of the Act would stand attracted. It was, accordingly, held that the Tribunal was not justified in holding that the show cause notice issued beyond the period of six months from the date of knowledge was barred by limitation. The appeal was, accordingly, allowed by quashing and setting aside the order passed by the Tribunal. 5. Mr. Paritosh Gupta, learned counsel for the applicant submitted that while allowing the Revenue s tax appeal, the issue of penalty that may have to be paid by the applicant was left out from being considered. It was, accordingly, urged that appropriate further orders regarding penalty under Section 11AC of the Act be made in the interest of justice. 6. It was pointed out that the proposal to impose penalty on the applicant was made under the show cause notice by invoking Section 11AC of the Act. The original adjudicating authority, viz., the Assistant Commissioner imposed penalty of Rs. 4,01,693/- being an amount equal to the amount of duty under Section 11AC of the Act without giving any option to the applicant herein to pay 25% of the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above referred decisions, the benefit of allowing option of paying 25% penalty under Section 11AC of the Act is required to be given to the applicant. 9. As regards the query raised by the court as to under which provision of law the present application had been made, the learned counsel submitted that such application was made under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ). It was vehemently argued that it is a requirement of law as contemplated under Section 11AC of the Act that the assessee is required to be given the benefit of paying 25% of the penalty and what the applicant was claiming, was the benefit under the Act. It was submitted that before the Tribunal, the applicant was contesting the matter on merits and as such, he was not required to raise such an issue. It was submitted that the benefit which flows under the Act was not extended to the applicant by the lower authorities which is otherwise a mandatory requirement of the Act. Reliance was placed upon the decision of the Gauhati High Court in the case of Dharampal Satyapal Ltd. v. Union of India, 2010 (257) E.L.T. 194 (Gau.), for the proposition that when a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (5) thereof, the High Court is required to decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded. It was submitted that in view of the provisions of Section 35G of the Act, in the absence of a substantial question of law having been framed by the court, it is not open for the court to entertain a plea in respect of an issue which was not raised before it. 12. The learned counsel further submitted that on the basis of the averments made in the application, the present application cannot be said to be an application under Section 151 of the Code, but an application under Section 152 thereof. Referring to the provisions of Section 152 of the Code, it was pointed out that the same permits the court to correct clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. It was submitted that the ingredients of the said section have not been made out in the present case, so as to call for amendment of the order. It was contended that unless there is a mistake apparent on record, there is no question of invoking the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as confirmed by the Commissioner (Appeals), appears to have been assailed only on the point of limitation. Thus, such issue never came up for consideration either before the Commissioner (Appeals) or the Tribunal. Since such issue was never raised before the Tribunal, there is no discussion in this regard in the order of the Tribunal. Consequently, such question did not arise out of the impugned order of the Tribunal and as a natural corollary, no such question was framed by this court while admitting the appeal and deciding the same. Even before this court, such issue was never raised nor was any request made for framing a question of law in this regard. No request was made for grant of the benefit under the proviso to Section 11AC of the Act at the time when the appeal was being allowed. Under the circumstances, no such relief had been granted to the applicant. 17. Moreover, in the light of the fact that such issue had not been raised before the lower authorities, it cannot be said with certainty that had the relief been prayed for before this court at the time of disposing of the appeal, the same would have been granted to the applicant. The said issue is, therefore, a debata ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
