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TMI Blog2003 (5) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... of other writ petitions which are requisite for the disposal, to meet the conception of completeness. 2.. At the outset we must state that what was a colossal complaint when the petitioner visited this Court in invocation of its jurisdiction under article 226 of the Constitution of India has watered down, if we are permitted to say so like a melted glacier inasmuch as the initial challenge to the constitutional validity of sections 61(4)(c), 69(2) and 69(3) of the Madhya Pradesh Commercial Tax Act, 1994 (for brevity "the Act") the core one, is no more required to be dealt with by us, in view of the subsequent developments that occurred during the pendency of this writ petition. The factual score as frescoed is that when notice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand was made which was five times of tax which was not paid by the assessee. At that juncture the assessee felt that the appeal which is provided for challenging the penalty was not an efficacious remedy inasmuch as 50 per cent of the penalty due has to be deposited before preferring the appeal and that apart no discretion was left with the appellate authority for reduction of penalty inasmuch as heavy onus is cast on the assessee to show that there was no fraud and gross negligence though under the accepted jurisprudence, the department has to record a finding that there was fraudulent maladroit effort by the assessee or there was gross negligence. In that backdrop the writ petitioners challenged the provision as unconstitutional. 4. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer has been satisfied that the assessee has recovered at the rate of 6 per cent from the consumer and not at the rate specified in the Schedule and accordingly refund has been directed. 5.. Mr. Ajay Kumar Mishra, learned Deputy Advocate-General has placed before us the Notification No. A-3-69-97-ST-V(33) dated 30th April, 2003 which amended the Notification dated May 9, 2001 and column No. (4) for the word "consumers" the word "purchasers" has been substituted. He has fairly stated that if the assessee has not collected the tax at the higher rate from its own dealers, he would be entitled to refund. 6.. Mr. T.R. Andhyarujina, learned Senior Counsel has advanced twofold contentions, namely, that this Court while admitting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpose penalty in certain circumstances.-(1) If the Commissioner or the appellate or revisional authority, in the course of any proceedings under this Act is satisfied that a dealer has concealed his turnover or the aggregate amount of purchase prices in respect of any goods or has furnished false particulars of his sales or purchases, as the case may be, in his return or returns for any year or part thereof or has furnished a false return or returns for such period, the Commissioner or the appellate or the revisional authority as the case may be, may initiate proceeding separately for imposition of penalty under this section. (2) The proceeding under sub-section (1) shall be initiated by the Commissioner or the appellate or revisional aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered opinion, unless there is some sort of gross negligence or fraud, the penalty proceedings may not be attracted. In any case, we may state here that as we are neither interpreting the provision nor dealing with the constitutional validity, we need not delve deep into that. In the case at hand when there is no tax liability beyond 6 per cent and the rate of tax has been determined by retrospective amendment, and relying on the same, the Tribunal has set aside the assessment order, the question of imposing any kind of penalty would be absolutely illogical, unreasonable and irrational. The inevitable conclusion that we are inclined to reach is that the penalty proceedings initiated by the assessing officer are to be quashed and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and the payment ensuing therefrom are hereby quashed. 13.. The learned Senior Counsel made a prayer that a direction be issued to the department to pay the differential sum in all cases within a stipulated period. 14.. Mr. Ajay Kumar Mishra, learned Deputy Advocate-General, submitted that the amount be adjusted towards the future dues. 15.. Mr. Ravinder Narain assisting the learned Senior Counsel after obtaining instructions from the assessee fairly submitted that it has no objection if the amount due is adjusted towards the future tax within a stipulated period of one year commencing 1st June, 2003. 16.. The writ petitions are allowed to the extent indicated hereinabove. However, there shall be no order as to costs. Writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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