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TMI Blog2018 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... notices dated 13th April 2016. Ordinarily even otherwise, there cannot be demand of penalty even before assessment is made and penalty imposed. Once the petitioner therefore abides by the directions of the Court by filing return-cum-challan and also deposits the principal tax demanded in the two demand notices, the mechanism of assessment being completed in accordance with law, would operate. It goes without saying that once assessment is complete, all statutory rights and remedies would be available to the assessee - if the penalty is confirmed, the Department could assert its right to recover the same. Application disposed off. - MISC. CIVIL APPLICATION No. 1 of 2018 In R/SPECIAL CIVIL APPLICATION No. 7844 of 2016 - - - Dated:- 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner s contention that there could be no demand of tax before assessment was also rejected, making the following observations : 12.1 Similarly, the submission on behalf of the petitioner that unless and until assessment order is passed and the amount of tax is determined, there is no question of making payment of tax is concerned, the aforesaid submission is also contrary to the scheme of the Act and Rules. 13. Now, so far as submission on behalf of the petitioner that under the provisions of Gujarat Value Added Tax Act, the assessee is entitled to claim tax credit equal to the amount of tax under the Entry Tax Act and therefore, the submission on behalf of the petitioner that if the provisions of Entry Tax Act were to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided the petitioner-importer files returncum- challan and respond to the notice for assessment. Therefore, it is observed that as and when return cum challan is filed along with payment of tax demanded, the said aspect be considered in accordance with law and on its merits, more particularly, said aspect may be considered during the assessment, provided the petitioner files return cum challan as per the impugned notice. Eventually, Special Civil Application No. 7844 of 2016 was ordered to be dismissed. The petitioner approached the Supreme Court against the said judgment of the High Court. The Apex Court disposed of the appeal as under : Heard the learned counsel for the petitioner and perused the relevant material. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng tax as demanded and then expect the authorities to pass an order of assessment, after bi-partite hearing. The anxiety of the petitioner in view of the final expression of the High Court in the writ petition, when the petition is dismissed, this opportunity would also be lost is justified. It is perhaps in this context that the Supreme Court while disposing of SLP against the judgment of the High Court observed that, ..if the petitioner entertains any doubt as to the availability of further remedy to it in terms of the order of the High Court, it will be open for the petitioner to seek appropriate direction from the High Court. So, much is not difficult to discern and not even strongly contested before us. The controversy revolves ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Court by filing return-cum-challan and also deposits the principal tax demanded in the two demand notices, the mechanism of assessment being completed in accordance with law, would operate. It goes without saying that once assessment is complete, all statutory rights and remedies would be available to the assessee. At that stage, if the penalty is confirmed, the Department could assert its right to recover the same. This clarification would obviate the requirement of review of the judgment. Before closing, it is provided that if the facility of filing the return-cum-challan with tax as clarified hereinabove is availed of latest by 30th October 2018, the assessment; as directed by the Court shall be carried out. Misc. Civil Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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