9911796707
TMI Blog1998 (5) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Commercial Taxes. The first respondent herein on July 13, 1994, searched the premises of the petitioner and alleging that he has purchased sugar from a sugar factory at Ichalkaranji during the year 1992-93 directed the petitioner to pay a sum of Rs. 91,053 as entry tax. The petitioner alleges that there is no assessment made for the demand made as above. Besides, as per annexure A, the petitioner alleges that he was called upon to pay Rs. 25,000 as composition fee under section 23 of the Act. He paid the same to avert prosecution and annexure B is the receipt evidencing that payment. The petitioner alleges that levy of compounding fee falls under section 23(b) and as such it cannot exceed Rs. 1,000. The excess levy is hence ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ader at length. 6.. I will first deal with the question of delay in approaching this Court as urged by the Government Pleader opposing the prayer. The composition effected by the petitioner impugned herein was on August 25, 1994 and the writ petition was filed on February 5, 1996. There is thus delay in moving this Court. It is seen that the petitioner pursued an incompetent appeal which was disposed of on August 24. 1995. Reckoning from that date it cannot be said that there is inordinate delay in approaching this Court. Learned Government Pleader relies on the judgment in W.P. No. 29546 of 1996 wherein it is urged that, in a similar circumstance this Court refused to exercise its jurisdiction under article 226 of the Constitution. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to Rs. 25,000. Thus, by seeking to compound the offence he should not be placed in a worse position than had he been prosecuted. Per se therefore the levy of excess composition fee is illegal. 9.. The next question to be considered is whether willingness on the part of the petitioner to pay a larger amount by way of a composition fee would alter the situation in any manner. This question has to be looked at in the following manner. The power being exercised by the officer is under section 23 of the Entry Tax Act. Outside the said provision, there is no power to compound the offence with respect to which the assessee could be proceeded against. And an assessee has to satisfy the conditions laid down in section 23 to compound the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down to the four corners of the-letters of law. 10.. Learned counsel for the petitioner relied on the decision of this Court in Assistant Commercial tax Officer (Intelligence) v. N.N. Jariwala reported in [1992] 86 STC 229; ILR 1991 Kar 4414 to sustain his contention. The following passage therein makes the position clear: "6. The next question for consideration is, whether the respondent was estopped from Presenting the writ petition on the ground of acquiescence. If the amount of compounding fee demanded and accepted by the respondent was within the maximum prescribed under section 31 of the Act, there would have been considerable force in the contention of the appellant that the dealer concerned having agreed for compounding of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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