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TMI Blog2018 (9) TMI 2002X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. That does not mean that, even without a show cause notice being issued, the dealer is obligated to pay penalty at 15% under Section 74(5) of the Act. Section 74(5) of the Act merely enables the petitioner to pay penalty at 15% on his own accord, in which event the assessing authority cannot thereafter issue a notice seeking recovery of the balance 85% penalty (i.e., penalty equivalent to the tax specified in the notice). Whether penalty at 15% should be paid or not is for the assessee to decide. The impugned order, to the limited extent the petitioner was called upon to pay penalty at 15%, is set aside - As the validity of the order is not subjected to challenge in this Writ Petition on any other ground, it is wholly unnecessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at 15%, contending that any proceedings for recovery of penalty must be preceded by a show cause notice which, admittedly, was not issued in the present case. 4. Section 74(5) of the APGST Act stipulates that a person, chargeable with tax, may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under Section 50 and a penalty equivalent to 15% of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer, and inform the proper officer in writing of such payment. Section 74(1) of the APGST Act stipulates that, where it appears to the proper officer that any tax has not been paid or short-paid or erroneously refunded or where input tax credit ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide. While he would, undoubtedly, run the risk of being subjected to penalty at 100% of the tax specified, the power conferred on the assessing authority to recover penalty, equivalent to the tax specified in the notice, is only after a notice is issued calling upon the petitioner to show cause why penalty should not be imposed on him. 6. The impugned order, to the limited extent the petitioner was called upon to pay penalty at 15%, is set aside. As the validity of the order is not subjected to challenge in this Writ Petition on any other ground, it is wholly unnecessary for us to examine the said order on its merits. 7. Suffice it, therefore, to set aside the impugned order to the limited extent the petitioner was called upon to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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