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TMI Blog2016 (7) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty to 10%. In the light of the fact that the order passed by the Tribunal is merely a discretionary order, in the opinion of this court, the same would not give rise to any question of law warranting interference. - Decided against the revenue. - Tax Appeal No. 865 of 2015 - - - Dated:- 18-3-2016 - Harsha Devani And G. R. Udhwani, JJ. For the Appellant : Mr Chintan Dave Assistant Government Pleader ORDER ( Per : Honourable Ms. Justice Harsha Devani ) 1. By this appeal under section 78 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the GVAT Act ), the appellant State of Gujarat has challenged the order dated 22.7.2014 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as the Tribunal ) in Second Appeal No.138 of 1996 by proposing the following three questions, stated to be substantial questions of law:- (1) Whether the Hon ble Tribunal is right in law in holding that interest under section 47(4A) of the Act is not leviable till the date of assessment order? (2) Whether the Hon ble Tribunal is right in law in holding that interest under section 47(4A) of the Act is not leviable if difference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of clause (b) of sub-section (4A) of section 47 of the GST Act, if the amount of tax assessed or reassessed under section 41 or section 44 exceeds the amount of tax already paid by a dealer for that period, there shall be paid by such dealer, for the period commencing from the date of expiry of the time prescribed for payment of tax under sub-section (1), (2) or (3) and ending on date of order of assessment, reassessment, or, as the case may be, revision, simple interest at the rate of eighteen per cent per annum on the amount of tax not so paid or any less amount thereof remaining unpaid during such period. It was submitted that, therefore, the said provision provides that the interest on the differential amount of tax shall be payable from the date and the time prescribed for payment of tax under sub-section (1), (2) or (3) and ending on the date of the order of assessment and, therefore to the extent of amount which was not paid within the time prescribed, the dealer is liable to pay interest on the entire amount despite having paid any amount by way of ad-hoc payment. It was submitted that, therefore, the Tribunal was not justified in holding that for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered dealer furnishing a revised declaration or revised return in accordance with sub-section (3) of section 40 which revised declaration or revised return shows that a larger amount of tax than already paid is payable, shall first pay into a Government treasury the extra amount of tax. xxx xxxx xxxx (4A) (a) Where a dealer does not pay the amount of tax within the time prescribed for its payment under subsection (1), (2) or (3), then there shall be paid by such dealer for the period commencing on the date of expiry of the aforesaid prescribed time and ending on the date of payment of the amount of tax, simple interest, at the rate of eighteen per cent, per annum on the amount of tax not so paid or any less amount thereof remaining unpaid during such period. (b) Where the amount of tax assessed or reassessed for any period, under section 41 or section 44, subject to revision if any under section 67, exceeds the amount of tax already paid by a dealer for that period, there shall be paid by such dealer, for the period commencing from the date of expiry of the time prescribed for payment of tax under sub-section (1), (2) or (3) and ending on date of order of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the tax, namely, 22.5.1994 and 5.6.1994. 8. Clause (b) of sub-section (4A) of section 47 of the GST Act provides that where the amount of tax assessed or reassessed under section 41 or section 44 exceeds the amount of tax already paid by a dealer for that period, there shall be paid by such dealer, for the period commencing from the date of expiry of the time prescribed for payment of tax under subsections (1), (2) or (3) and ending on the date of order of assessment, reassessment, or, as the case may be, revision, simple interest at the rate of eighteen per cent per annum on the amount of tax not so paid or any less amount thereof remaining unpaid during such period. Therefore, in terms of clause (b) of sub-section (4A) of section 47, if the amount which is ultimately assessed exceeds the amount which is already paid by the dealer, to the extent of the difference in the amount paid and the amount the dealer was liable to pay, the dealer would be liable to pay interest from the prescribed date till the date of the order. 9. In the opinion of this court, clause (b) of sub-section (4A) of section 47 of the GST Act, however, cannot be read to mean that even if any amount as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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