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TMI Blog2007 (4) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... med the penalty levied under section 15A(1)(a) of the Act. Brief facts of the case are that the applicant was carrying on the business of pan masala containing tobacco, which is commonly known as gutkha in the brand name of badshah pasand gutkha . The applicant filed monthly returns as required under rule 41(1) of the U.P. Trade Tax Rules, 1948 (hereinafter referred to as, the Rules ) for the aforesaid disputed period and claimed exemption on the entire turnover and had not admitted any liability of tax. Since the liability of tax had not been admitted, no tax was deposited. The assessing authority initiated the penalty proceedings under section 15A(1)(a) of the Act on the ground that the gutkha was not exempted from tax, inasmuch as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from tax on the turnover of gutkha by the assessing authority. However, so far as the applicant is concerned, since business has been closed despite the effort being made, the information could not be gathered whether the present applicant has been subjected to tax or not ultimately. He submitted that in the case of Commissioner of Trade Tax, U. P., Lucknow v. Anand Kumar Proprietor, Kanpur reported in [2006] 31 NTN 436 no tax has been assessed by the assessing authority on the turnover of gutkha and the penalty under section 15A(1)(a) of the Act was deleted by the Tribunal and the order of the Tribunal has been confirmed by this court. The learned standing counsel submitted that Notification No. ST-II7038/X-7(23)/83-U.P. Act XV/48-Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished by the dealer is incorrect, it is always open to the assessing authority to pass provisional assessment order under rule 41(6) of the Rules and raise the demand. Without passing the provisional assessment orders under rule 41(6) of the Rules, it cannot be said that the return filed by the dealer disclosing the turnover and admitting or non-admitting liability of tax is incorrect. The penalty has been levied under section 15A(1)(a) of the Act merely on the ground that according to the assessing authority, there was liability of tax on the turnover of gutkha and the dealer should have deposited the tax at ten per cent. Admittedly, no provisional assessment orders for the disputed period were passed. Thus the approach of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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