9911796707
TMI Blog2015 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.60 of 2010. 2. To prima facie satisfy ourselves whether there is any substance in the appeal and as, if prima facie, it is found that there is no substance in the appeal, in that case, to issue Rule in the present application for condonation of delay, call upon the respondent, to condone the delay and thereafter, to dismiss the appeal would be exercise in futility and unnecessary burden and/or undue hardship to the respondent, we have heard Shri Chintan Dave, learned A.G.P. on merits. 2.1. From the appeal memo, it appears that the State has proposed the following questions of law:- "(1) Whether the Hon'ble Tribunal is right in law in deleting levy of turnover tax u/s 10A of the Act? (2) Whether the Hon'ble Tribunal is right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority had wrongly levied interest under section 47(4A)(a) on ad-hock payment of Rs. 3,05,168. As per the said ad-hock payment was not paid as per the returns. (3) The assessing authority had wrongly invoked the provision of section 47(4B) of the Act and had wrongly adjusted the ad-hock payment towards the interest and penalty, as he was not liable to pay interest under sub-sec. (4A). (4) The assessing authority had wrongly levied penalty of Rs. 1,88,666 under section 45(6) as the difference between tax paid and tax assessed was less than 25%. The said penalty was levied without considering the fact that the appellant had paid ad-hock tax before the assessment. We have heard the learned advocate for the appellant and the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase tax under section 15B. It was the contention of the learned advocate, that as the appellant had not shown the said amount as taxable in returns, the appellant cannot be burdened with interest under Section 47(4A)(a). And it was also contended by him that the tax was paid well before the assessment, hence, there was no difference between tax already paid and tax assessed. He, therefore, contended that he cannot be made liable to pay interest under section 47(4A)(b). We do not find ourselves in agreement with the contention of the learned advocate, because what ever the appellant had paid was tax, and in assessment he was held liable to pay purchase tax under section 15B. The learned Government Agent also submitted that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance payment of tax and once such payment is made prior to the date of assessment or reassessment or revision and thereafter, there would not be any more liability of tax on assessment or reassessment than the amount of tax already paid by the appellant prior to the date of assessment or reassessment, in that case, the appellant is not required to pay any interest. We, therefore, hold that the judgment of this Tribunal in the case of Bombay Paints Ltd., laying down the ration that the adhoc payment made by the appellant prior to the date of assessment would not be taken into consideration for determining the difference between the tax already paid and the tax assessed or reassessed, is not the correct proposition of law. Such, lump sum or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made ad-hoc payment with interest, he would not be liable to pay further interest. In present case, the assessing authority had assessed tax of Rs. 4,51,105. We remove the turnover tax of paid Rs. 15,050. Therefore, net tax liability comes to Rs. 4,36,155 the appellant had paid Rs. 1,54,727 with returns therefore, he was required to pay Rs. 2,81,428, whereas he had made ad-hoc payment of Rs. 3,05,168 on 29/03/2000. Therefore, the appellant was liable to pay interest on amount of Rs. 2,81,428 till the date of payment i.e. 29/03/2000. So far as the interest under section 47(4B) is concerned the said provision is not charging provision. If any amount is payable and the dealer pay lesser amount than amount so paid shall be first adjusted agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant submitted that there were uncertainly about the provision of section 15B, some matter were pending before the Hon. High Court, considering same as reasonable cause penalty under section 45(6) was not leviable. He further submitted that even in any case if penalty was leviable than also considering the facts some token amount was leviable. Considering submission made by the appellant and further considering that the appellant had paid entire tax before the assessment we reduced the penalty to 20% of the tax demand of Rs. 2,81,428." 4. Considering the above, as such, it cannot be said that the learned Tribunal has committed any error in passing the impugned judgment and order. The learned Tribunal has dealt with all the issues ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
