9911796707
TMI Blog2006 (1) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner No. 1 is a public limited company registered under the Companies Act, 1956 as Birla Corporation Limited and its cement division is styled as Satna Cement Works. Petitioner No. 2 is the shareholder of the company and has joined the company as a petitioner as his interests are also affected. It is pleaded that the assessing officer imposed the penalty of Rs. 1,30,858 for the financial year 1995-96 and the said penalty was imposed under section 10-A of the Central Sales Tax Act, 1956 (for brevity, the Act ). The said order came to be passed on August 25, 2000 as per annexure P1. It is contended in the petition that the State Government issued a Notification No. A-7-15-2001-ST-V(99), dated January 5, 2000 whereby it promulga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 instead of passing three separate orders and the amount of penalty has been separately quantified for each year and in view of severability the petitioners cannot be deprived of the benefit when a scheme has been floated by the State Government. It is also contended that had a consolidated demand been made for three years the conception of separability would not have been attracted as it might not have been possible to demarcate the demands for settlement as the demand relating to the year 1997-98 is not covered under the Scheme for the purpose of settlement. It is put forth that once an order has been passed accepting the settlement and deposits have been made, it is inappropriate on the part of the authority to reject the prayer for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty was assessed, quantified and imposed for the first time in the year 2000 and was not meant for any specific period but in fact, was imposed for the violation of certain provisions of the Act. The penalty imposed by the answering respondents, as pleaded, did not relate to any specific year or period but was imposed on the ground of abuse and misuse of the declaration form issued to the petitioners. Emphasis has been laid on the factum that the order imposing penalty is a consolidated one and hence, it cannot be bifurcated year-wise to extend the benefit of the Scheme. I have heard Mr. Sumit Nema, learned counsel for the petitioners and Mr. Harish Agnihotri, learned Government Advocate for the respondents. It is propounded by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onmentioning of appeal in the application amounts to such an act by which petitioners should be deprived of consideration of their application. Clause 5(i) of the Scheme stipulates that if any appeal is pending, it should be mentioned in the application with the undertaking that he is taking the benefit of the Scheme floated by the State Government and the appeal preferred by him would be deemed to be disposed of. The aforesaid condition, submits Mr. Nema, has a purpose to know the fate of appeal and also to bind down the assessee. In the case at hand, due to inadvertence the petitioner did not mention about the factum of filing of appeal and in any case that would not be an impediment for consideration as that cannot always be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the said imposition does not relate to any specific period. If the submission of Mr. Agnihotri is understood in proper perspective it would mean that the purpose for imposing penalty is the genus and the such genus does not permit any kind of bifurcation and, therefore, the question of applying the Scheme does not arise. The aforesaid submission has a basic fallacy. On a perusal of annexure P1, the order imposing penalty, the respondent No. 1 has unequivocally dealt about the irregularities qua for different years. He has determined the quantum for the years 1995-96, 1996-97 and 1997-98 separately and has imposed the penalty taking into consideration the said amount. The amount of penalty per year is totally different. The orders could h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and the benefit was conferred. When grant of certificate was sought, a different order came to be passed on the aforesaid grounds. The impugned order only states that as a consolidated order was passed, it is not possible to settle. In the absence of any other reason, I am inclined to think the said order is unsustainable, as I have already held that the reason behind the imposition of penalty is not the governing or pivotal factor but the real factum is quantum of penalty and the segregation as regards the same year-wise. As in the present case, despite the consolidated order, the year and the quantum are separable, the doctrine of separateness would get attracted for availing the benefit of the Scheme. It is not out of place to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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