TaxTMI 
TaxTMI 
2010 (7) TMI 917
X X X X Extracts X X X X
X X X X Extracts X X X X
....rds entry tax only and not towards VAT. The facts as appearing in the petition are that the petitioner who is carrying on business as a dealer, dealing in trading of yarn, is registered under the Gujarat Value Added Tax Act, 2003 ("the GVAT Act") as well as the Central Sales Tax Act, 1956. The relevant assessment period is April 1, 2006 to March 31, 2007. During period under consideration, the petitioner, inter alia, purchased yarn from outside the State of Gujarat and was thus, liable to pay entry tax at the rate of four per cent thereon. The petitioner calculated the amount of entry tax payable for each month and paid the same, using form No. 207 prescribed for payments under the GVAT Act, instead of form No. 1 which is the return-cum-challan prescribed under the Gujarat Tax on Entry of Specified Goods into Local Areas Act, 2001 ("the Entry Tax Act"). However, in each such challan, the petitioner had specified the amount as towards entry tax and payment details columns like VAT, purchase tax, etc., were kept completely blank and were not filled in. Payments of entry tax, under wrong challans were made for the period September, 2006 to January, 2008. The petitioner used to depo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity for payment of tax under the Entry Tax Act. Thereafter, audit assessment came to be initiated against the petitioner under the GVAT Act as well as the Central Sales Tax Act. It is the case of the petitioner that no notice for assessment under the Entry Tax Act was issued at that time or at any time thereafter. Respondent No. 3, thereafter, made assessment orders under the Entry Tax Act as well as under the GVAT Act. Under the Entry Tax Act, it was held that since the entry tax had not been paid through proper challan form, it was to be held that entry tax had not been paid at all and accordingly, the petitioner was held liable to pay entry tax of Rs. 1,11,31,662 afresh, penalty of Rs. 61,78,072 under section 17(2) in the nature of interest towards alleged late or non-payment of entry tax and penalty of Rs. 66,78,997 under section 17(1) for non-compliance with the provisions of section 3 and section 10 of the Entry Tax Act and noncompliance with rules 3 and 4 of the Gujarat Tax on Entry of Specified Goods into Local Areas Rules, 2001 due to alleged failure to pay entry tax. It is further the case of the petitioner that entry tax paid/payable under the Entry Tax Act is admissible....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted by the bank as payment of tax under the Entry Tax Act. It was submitted that the petitioner's mistake of paying entry tax in a wrong form cannot be equated with non-payment of entry tax so as to hold the petitioner to be an assessee in default and thrust a tax liability on it. It was submitted that when more than 15 times covering a period of 15 months, the counterfoils of tax-paid challans were deposited by the petitioner with the respondents and again about 14 times over a period of 15 months, form No. 403 was got pre-authenticated by the petitioner from the respondents, no one from the respondents even drew the attention of the petitioner towards its mistake in using incorrect challan forms, the respondents are not justified in coming down so heavily on the petitioner. It was contended that the mere fact of paying tax under a wrong form cannot make the petitioner liable to pay the tax again and that too, with huge interest and penalty. It was contended that the denial of input-tax credit on tax paid by the petitioner although through incorrect challan form is also unwarranted and unjustified. It was urged that the petitioner's mistake of using incorrect challan form ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 20 to 26 of the petition) indicates that under the said challan, the petitioner had paid only entry tax which is mentioned therein and there is no other entry made against any column in the printed form. Thus, it is apparent that entry tax has been paid under the wrong form on account of a mistake on the part of the petitioner. Such a mistake in making payment under a wrong form, more so when the Department is the same, cannot be equated with nonpayment as has been done in the case of the petitioner. In case the petitioner had made a mistake, the respondents could as well have drawn its attention to the same, so that the same could be rectified at the earliest. A bona fide mistake on the part of the petitioner cannot be sought to be taken advantage of by the Revenue merely with a view to extract more money from the petitioner in the form of interest and penalty taking shelter behind a highly-technical objection that the amount payable by way of entry tax, though actually deposited with the Department well within the prescribed time-limit, had been deposited under a wrong form. In case of such bona fide mistake on the part of the assessee, when there is no financial loss cau....