9911796707
TMI Blog1994 (11) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... oner under Section 11C(1) of the Act. Against the order of assessment, the petitioner company filed an appeal under Section 20 of the Act before the Deputy Excise and Taxation Commissioner (Appeals), Patiala Division. An application under Section 20(5) of the Act was also filed wherein the petitioner stated that it was not in a position to pay ₹ 47,12,294/- because of the fact that capital of the petitioner was lying locked up in the committed business and even the bank over-draft of the Company has been exhausted. The petitioner further pleaded that interest could not be included in the amount payable as a condition to the hearing of appeal. This application was dismissed by the Deputy Excise and Taxation Commissioner (Appeals) vide order dated 26.8.1993 (Annexure P-5) and the petitioner was directed to deposit the full amount of tax together with the interest by 7.10.1993 with a stipulation that in case the petitioner fails to do so, its appeal would be dismissed in limine. The petitioner then filed an appeal under Section 20(2) of the Act before the Sales Tax Tribunal, Punjab, and also filed an application under Section 20(5) of the Act for issue of a direction to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dealer fails to pay the amount of tax due from him as per the requirement of Section 11A and as there is no failure on the part of the petitioner, the stand taken by the respondents about the petitioner's liability to deposit the amount of interest is untenable. 7. Mr. M.L. Sarin, Senior Advocate, appearing for the petitioner has tried to persuade us to examine the legality of the order Annexure P-1 passed by the Assessing Authority and argued that the very imposition of the tax under Section 11 is without jurisdiction. However, we find little justification for examining the validity of this argument, because this very question is under consideration before the Appellate Authority in the appeal filed by the petitioner against the order of assessment. That appeal has not so far been decided by the competent authority and once the petitioner itself has thought it proper to avail alternative remedy of appeal, there is no scope for this Court to record finding on the question of liability of the petitioner to pay tax and interest. 8. The aforesaid conclusion of ours, however, does not result in dismissal of the writ petition. Another and more important argument of Shri Sar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of one and a half percentum per month till the default continues. Provided that where the recovery of any tax or penalty is stayed by an order of any court, the amount of tax or penalty, after the order of stay is vacated, be recoverable alongwith interest at the aforesaid rate on the amount ultimately found to be due and such interest shall be payable from the date the tax or penalty first became due. (3) The amount of interest payable under this Section shall- (i) be calculated by considering part of a month as one month and any amount less than one hundred rupees as one hundred rupees; (ii) for the purposes of collection and recovery, be deemed to be tax under this Act; (iii) be in addition to the penalty, if any, imposed under this Act; Explanation:- If payment of the amount of tax is made by any dealer through cheque and the same is dishonoured by the bank concerned it will amount to failure on the part of the dealer to pay the amount of tax. 20. Appeal :- (2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Commissioner or any Officer on whom the powers of the Commissioner, are conferred, shall be further a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sixty days shall commence from the date of receipt of the copy of the order . by the appellant and in the case of an appeal against any other order made under this Act, the time spent in obtaining the certified copy of the order shall be excluded in computing the period of sixty days. 10. A combined reading of Sections 11B, 11D and Section 20 of the Act shows that amount of tax and penalty as well as interest payable under the Act can be recovered as arrears of land revenue. The amount of interest is payable by the dealer who fails to pay the amount of tax due from him as required by Section 10(4). Section 11D(2) speaks of the rate of interest for different periods and Section 11D(3) speaks of the mode of calculation of the interest. Sub-Clauses (ii) and (iii) of Section 11D(3) makes it further clear that amount of interest payable under Section 11D shall be in addition to the penalty imposed under the Act and for the purpose of collection and recovery it shall be deemed 10 be tax. Section 20(5) imposes a bar to the entertaining of appeal by the Appellate Authority unless the appeal is accompanied by a satisfactory proof of the payment of tax or penalty, if any imposed. Provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jab Act, a look at Section 39(5) and proviso thereto of the Haryana General Sales Tax Act, 1973, is indicative of the fact that the Haryana Legislature intended the payment of interest apart from tax and penalty as a condition precedent for entertaining an appeal under the said Section, Haryana Act is a later statute and it can reasonably be presumed the Haryana Legislature was very much conscious of the provisions contained in the Punjab Act when it enacted the Haryana General Sales Tax Act, 1973. The Legislature of that state has thought it proper to include the requirement of payment of interest as condition precedent for entertaining of an appeal under Section 39. The Legislature of the Punjab State has not thought it proper to bring about an amendment in the Act of 1948 so as to include the requirement of payment of interest as a condition for entertaining of the appeal. In fact, when amendment were made in the Act by Act No. 26 of 1978, the Legislature could have very well incorporated the expression 'or interest payable' in Section 20(5) and proviso thereto as was done in Section 11B. This further buttress our conclusion that there is no requirement of payment of int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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