9911796707
TMI Blog2015 (3) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... osed under section 54(1) and its sub sections of the Act, 2008. Held that:- Orders cannot be said to be ex-parte as from the record it is established that the notices were adequately served upon the Unit. However, what is not clear is whether the notices were served upon the assessee or whether they were served upon the Receiver and what would be the effect, once the Unit had been taken over by the Receiver on 18.9.2009. These questions have not been decided by the Tribunal while justifying the imposition of penalty upon the assessee. The Tribunal has also not taken into consideration the question as to whether molasses would be taxable or not in view of the judgment of the Court in the case of SAF Yeast Company Pvt. Ltd. (2008 (10) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the writ petition has been dismissed the assessee has no right to retain possession and further directed that the possession of the Factory shall be handed over to the Bank in the presence of the S.D.M. Lakhimpur Kheri on 3.11.2012. The order dated 1.11.2012 passed on the restoration application reads as under: In the result of dismissal of the writ petition, the applicant seeks restoration of possession from the custody of the receiver by means of order dated 18.9.2009 passed by this Court. During the pendency of writ petition the receiver was appointed and direction was issued to hand over the possession of the factory. Since the writ petition is dismissed, he has no right to retain the possession, therefore the possession of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited admitted tax of ₹ 2,87,029/- alongwith interest amounting to ₹ 1,79,400/- in the penalty proceedings under section 54(1)(1)(a) for the assessment year 2008-09. In Trade Tax Revision No. 103 of 2014 for the assessment year 2008-09 in respect of penalty proceedings under section 54(1)(19) the assessee had deposited the amount of input tax credit under protest amounting to ₹ 10,000/- on 31.12.2009, ₹ 2,71,537/- on 6.2.2010 and ₹ 2,00,00/- on 30.11.2010 in-spite of its financial difficulties. I have heard Shri Pradeep Agarwal, learned counsel for the revisionist and Shri Sanjeev Shankdhar, learned counsel for the State Revenue. The contention of Shri Pradeep Agarwal, learned counsel for the revisioni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted tax had already been deposited by the assessee inspite of financial hardship being faced by the Unit and therefore in view of the bonafide conduct of the assessee no penalty should have been imposed under section 54(1) and its sub sections of the Act, 2008. From the documents on record it appears that for the assessment year 2008-09 penalty has been imposed under section 54(1)(19) by order dated 1.12.2012 of ₹ 24,09,680/-, again for the year 2008-09 a penalty has been imposed under section 54(1)(1) (a) of the Act, 2008 for ₹ 57,407/-. For the assessment year 2010-11 penalty has been imposed against the assessee under section 54(1)(1) of ₹ 1,69,883/-. However, the contention of the assessee that Receiver had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in view of the judgment of the Court in the case of SAF Yeast Company Pvt. Ltd. (supra) as well as in the case of D.S. M. Group of Industries (supra). Therefore, considering the matter in its proper perspective I am of the view that the order dated 27.11.2013 of the Tribunal is not sustainable and the matter requires reconsideration by the Tribunal on the questions involved after giving adequate notice to the assessee. For the reasons stated above, the above revisions are allowed and the order of the Tribunal dated 27.11.2013 is set aside and the matter is remitted to the Tribunal to reconsider the matter in the light of the observations made herein above within two months from the date of receipt of certified copy of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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