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TMI Blog2015 (1) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Authority reduced the rate of penalty from 50% to 10% for the fourth quarter of 2011-2012 and reduced the penalty from 50% to 5% for the first quarter in 2012-2013 because the Appellate Authority took note of the fact that the interest on the delayed payment was also deposited by the revisionist. The Department carried the matter in second appeal before the Tribunal. The Tribunal interfered with the order of 1st Appellate Authority and imposed penalty at the rate of 20% for both the quarters. Feeling aggrieved by the said orders, Commercial Tax Revision Nos. 8 of 2014 and 9 of 2014 have been preferred. After preferring Commercial Tax Revision Nos. 8 of 2014 and 9 of 2014, revisionist preferred second appeals against the orders of the 1st Appellate Authority; those were accompanied by applications seeking condonation of delay of 236 days. The Tribunal did not find merit in the cause shown for condoning the delay and, on that basis, without going into the merit of the matters, dismissed the second appeals. The said orders are challenged separately in Commercial Tax Revision Nos. 21 of 2014 and 22 of 2014, which we are disposing of by this common judgment. 3. We have heard the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the erstwhile U.P. Trade Tax Act, 1948? 5. Elaborating on the said substantial questions of law, Shri P.R. Mullick would point out that in all cases, only on account of financial constraints faced by the revisionist, revisionist could not pay in time. Learned counsel for the revisionist drew our attention to the facts that returns have been filed on time. He would point out that the revisionist supplies goods to Government concerns and recovery of the bills extends to 300 days and there is a genuine reason, which compelled the revisionist not to submit the tax alongwith the returns. He would, in fact, submit that this is the first time the revisionist is levied with penalty. He would submit that application for extension of time was given and since the application was given and there was no response, it must be treated as having been allowed. In this regard, he drew our attention to a judgment of the Allahabad High Court, reported in [2006] 150 Taxman 254 (All.) (Commissioner of Income-tax, Meerut versus Rohit Organics (P.) Ltd.). Still further, he would submit that the penalty is imposed on the revisionist under Section 58 of the Act. This is a State Law. There is no provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the year 1976 there can be no dispute that there is power to impose penalty in a case like this. He would also submit that the revisionist did not produce any proof regarding the alleged financial difficulty. 7. The question of law, which is pressed before us by the learned counsel for the revisionist, would appear to have been there is absence of power. Section 58 deals with penalty. It is, undoubtedly, a penal provision. It is a provision, which contains the minimum and maximum penalties, which may be imposed. No doubt, penalty, in this case, was imposed for the reason that tax was not paid alongwith the return. That appears to be covered by provision of Section 58 (1)(vii)(a) of the Act. Section 58(1)(vii)(a) of the said Act reads as under:- "58. Offences and Penalties- (1) If the Assessing Authority is satisfied that any dealer or other person- (vii) has, without any reasonable cause failed- (a) to deposit the tax due under the Act, before furnishing the return or alongwith the return, it may, after such inquiry as deemed necessary, direct that such dealer or person shall pay, by way of penalty, in addition to the tax, if any, payable by him." 8. The only basis for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit in the said contention. 10. In this context, we also are not impressed by the contention of the learned counsel for the revisionist, in regard to Commercial Tax Revision Nos. 21 of 2014 and 22 of 2014. The appeals were filed after the disposal of appeals by the Department and after the Commercial Tax Revision Nos. 8 of 2014 and 9 of 2014 were filed. This appears to be an afterthought. No doubt, learned counsel for the revisionist would point out that the matters were being proceeded with on the basis of legal advice. We also notice the judgment of the Kerala High Court, reported in 1999(1) R.C.R. (Civil) 685 (Kuttan Nair versus Mammi) and also the judgment of Jammu & Kashmir High Court, reported in 2002 AIHC 4273 (Hakim Nusrat Jabeen versus State of Jammu and Kashmir and others). They proceed to lay down that wrong advice may not be a ground for condonation of delay. We do not wish to go on that basis for the reason that in the facts of this case, we would think that the attempt to get the matter re-agitated in a case where the departmental appeals were already disposed of, appears to have been highly belated and, at any rate, we did not find that there is merit in the substan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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