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TMI Blog2018 (5) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of penalty, then he may express such an opinion in his order by citing reasons. The discretion of the Commissioner in the matter of imposing penalty would extend even on the choice of the penalty to be imposed, of course, up to a maximum of twice the value of the wrongly claimed tax credit. The Statute has neither made it compulsory for the Commissioner to impose penalty once the breach is established nor has made the quantum of penalty mandatory. As is well-known, various fiscal penal statutes, either prescribe a range of penalty from which the competent authority may chose or may provide a minimum penalty below which the competent authority cannot travel. Petition dismissed. - Special Civil Application No. 7463 of 2017 - - - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty to 200% of the excess tax credit claimed. 4. The assessee was of the opinion that it was discretionary upon the assessing authority whether to levy penalty or not and if he desired to levy penalty, then at a rate not exceeding 200% of the wrongly claimed tax credit. The Tribunal, therefore, reversed the revisional order of the Commissioner and restored that of the assessing authority. 5. The State Government has, therefore, filed this petition in which the main ground urged is that once the necessary facts for imposition of penalty under sub-section 7 of Section 12 of the Act are established and the assessing authority decides to levy such penalty, he would, thereafter, have no discretion to reduce the penalty below 200% of the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11 or under this section, the Commissioner may, after giving the dealer an opportunity of being heard direct him to pay a penalty equal to twice the amount of tax credit so claimed. 7. Under this sub-section, thus, if the Commissioner is satisfied that a dealer has claimed tax credit for such stock for which he is not entitled to claim such credit or he has claimed excess tax credit than what he is entitled to, then the Commissioner may, after giving the dealer an opportunity of being heard, impose a penalty equal to twice the amount of tax credit so claimed. This provision, thus, uses the expression may when it comes to the Commissioner imposing penalty, even if a breach, as mentioned in Clauses (a) (b) of sub-section 7 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well-known, various fiscal penal statutes, either prescribe a range of penalty from which the competent authority may chose or may provide a minimum penalty below which the competent authority cannot travel. The wordings of sub-section 7 of Section 12 do not indicate either of these two situations. The statute has provided upper limit without prescribing the minimum level of penalty. As rightly pointed out by learned counsel for the respondent, the Division Bench of the Bombay High Court in case of Addl. CST v. Ankit International [2011] 46 VST 1 , dealt with a some what similar situation arising out of the Maharashtra Value Added Tax Act. Sub-section 2 of Section 61 of the said Act provides that the Commissioner may impose a penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty should be imposed. That the imposition of the penalty under sub-section (2) of section 61 is not mandatory has been emphasized in a judgment of a Division Bench of this Court in Nitco Paints Ltd. v. State of Maharashtra (2011) 42 VST 71 (Bom.) in the following terms; ....But the submission which has been urged on behalf of the Revenue is that once the Commissioner proceeds to hold that a penalty is liable to be imposed, he must necessarily impose a penalty equal to one tenth per cent of the total sales. In other words, it is urged that the discretion is whether or not a penalty should be imposed and not in regard to the extent of the penalty. As a matter of first principle there is no reason for the court to restrict, by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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