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TMI Blog2012 (10) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent calling upon the petitioner to pay Rs. 12,10,443 within the stipulated time towards balance penalty and interest liable in respect of the assessment years 2005-06, 2006-07 and 2007-08. This notice was issued by the first respondent in response to the letter of the petitioner dated December 11, 2009 seeking refund of the disputed tax, deposited while preferring appeals to the Appellate Deputy Commissioner and thereafter to the Sales Tax Appellate Tribunal. Having regard to the fundamental error in the impugned notice dated December 28, 2009 issued by the first respondent, we consider it appropriate to set out the relevant chronology of events, common in all the writ petitions. We record the facts in W.P. No. 7174 of 2010 as illustrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the levy of tax as proposed in the show-cause notice and also passed an order dated March 25, 2008, confirming the penalty. * Challenging the assessment order dated March 1, 2008, the petitioner filed a writ petition. This was allowed by this court by order dated July 3, 2008 (a common order in respect of three writ petitions challenging the orders of assessment in respect of the assessment years 2006-07 and 2007-08 as well). The writ petition was allowed on the ground that no opportunity of personal hearing was provided to the assessee. The order of the assessment was quashed and the matter remitted to the first respondent for passing a de novo order of assessment, in accordance with law. * In view of the annulment by this court of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated July 3, 2008), the first respondent issued a fresh penalty notice under section 53(3) of the 2005 Act, consequent on this order of assessment dated August 30, 2008. This penalty notice refers to the earlier penalty proceedings dated March 25, 2008 (issued in consequence of the initial and since invalidated order of assessment dated March 1, 2008). * Consequent to the orders of the Tribunal dated October 9, 2009 nullifying the orders of assessment as confirmed in appeal and thus the liability of the petitioner to tax, the petitioner submitted a representation dated December 11, 2009 to the first respondent for refund of the tax deposited while preferring appeals before the Appellate Deputy Commissioner and the STAT and in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r fifty per cent (as the case may be) of the difference of the tax, penalty, interest or any other amount as assessed by the authority prescribed or revisional authority as the case may be and the tax, penalty, interest or any other amount admitted and paid by the appellant, with interest calculated at the rate of 12 per cent per annum if refund is not made within 90 days from the date of receipt of the order passed under section 31 or section 33 of the 2005 Act. We are concerned with the liability to refund by the respondents of the amounts of pre-deposit of 50 per cent of the disputed tax, deposited by the petitioner while preferring appeals before the Appellate Deputy Commissioner and the Tribunal, arising consequent on the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to culmination and did not pass final orders imposing penalty, pursuant to the penalty notice dated October 3, 2008. There was thus an unfertilized penalty proceedings, which did not culminate in an order of penalty. Insofar as the interest on tax liability is concerned, also mentioned in the impugned notice dated December 28, 2009, such interest liability suffered a plenary eclipse consequent on the order of assessment having been nullified by the order of the Tribunal dated October 9, 2009 in T.A. No. 143 of 2009. In the light of the facts and circumstances and chronology of events adverted to hereinbefore, the conclusion is irresistible that there was a systematic failure on the part of the respondents, in particular, the first responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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