9911796707
TMI Blog2016 (6) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of tax with the penalty as made by the Assessing Officer is restored and maintained. 3. We have heard Sri. E.I. Sanmathi, learned counsel appearing for the appellant and Smt. Shwetha Krishnappa, learned Government Advocate for the State. 4. Learned counsel for the appellant at the outset submitted that the matter is covered by the decision of a Coordinate Bench of this Court dated 29.07.2011 in TAET Nos.3/2010 and 1/2011 whereby the Division Bench of this Court having found that since two interpretation were available, one of the Assessing Authority and another of the Appellate Authority on the liability to pay tax and there was doubt and confusion in the provision, the penalty imposed deserves to be interfered with and ultimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case are identical. 7. It is true that if this Bench is having a different view, the question may arise for making reference to the larger Bench. However, it is well settled principle of law that demand of tax and interest is one thing and penalty is another. When the penalty is to be imposed judicial discretion is required to be exercised for maintaining penalty including on the aspects of proportionality on the penalty. If the facts are further examined, there cannot be any dispute that the Assessing Officer maintained tax demand but the First Appellate Authority reversed it. Therefore, when two views were available one could reasonably say that basic requirement for imposition of the penalty which can rather be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held that the assessee is liable for payment of tax and interest. 9. However, when the Additional Commissioner himself is not sure about the liability of tax and when he has set aside the order of the Assessing Authority, it is obvious that these provisions did give rise to various interpretations and as to who was not liable for tax. In that view of the matter, imposition of penalty is uncalled for. Now the legal position is clear. The assessee cannot take advantage of these doubts and confusions in these provisions. Therefore, the penalty portion of the order requires to be interfered with and accordingly, it requires to be set aside. Hence, we pass the following: ORDER The appeal is allowed in part. The order of the Revisional Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
