9911796707
TMI Blog2015 (12) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and remitted to the Government has to be forfeited under section 47(2)(b) of the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as "the Act", for short). 2. The facts are not in dispute. The assessee was operating a barge-mounted generator set in Tannirbhavi in the backwaters of Arabian Sea in Mangalore for power generation. Power generated from the barge-mounted generator set was being supplied to the Government of Karnataka under an agreement, up to June 7, 2008, which was not renewed subsequently. The generator set was purchased from M/s. Bharat Petroleum Corporation Limited (for brevity "M/s. BPCL") under fuel supply agreement. On June 7, 2008 when the power generation was stopped by the assessee, there was a stock of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. Aggrieved by the said order, a second appeal was preferred to the Tribunal. The Tribunal was called upon to go into the question whether penalty imposed was valid or not ? On the contrary, the Tribunal went into the question whether there was any liability to pay tax at all by the assessee and it came to the conclusion that, as the assessee was not carrying on the business of sale of naphtha and what was sold is solitary transaction and it does not amount to "sale" as defined under the Act. Therefore, it held that there was no tax liability on the assessee. As the assessee collected and remitted the amount to the Government, the Tribunal held that the assessee is not entitled to get back the said amount and it would be treated as pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as valid or not ? 6. We are satisfied from the materials on record that levy of penalty was not justifiable because the assessee had filed a revised return, paid tax and interest within a span of 11 days. Hence, imposition of penalty is not being automatic unless the intention to evade tax is made out or any mala fide act is made out, the penalty cannot be imposed. Therefore, the order of imposing penalty is unsustainable. Accordingly, it is hereby set aside. At the same time, forfeiture of amount collected and paid to the Government under section 47 is one which is beyond jurisdiction of the Tribunal. The said amount represents tax and interest for delayed payment as the said amount was collected from the purchaser, the assessee had no ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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