TaxTMI 
TaxTMI 
2015 (6) TMI 664
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.... hardship to the respondent, we have heard Shri Chintan Dave, learned A.G.P. on merits. 2.1. From the appeal memo, it appears that the State has proposed the following questions of law:- "(1) Whether the Hon'ble Tribunal is right in law in deleting levy of turnover tax u/s 10A of the Act? (2) 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? (3) Whether the Hon'ble Tribunal is right in law in holding that interest u/s 47(4A) is not leviable if difference between tax assessed and tax paid does not exceed 10%? (4) Whether the Hon'ble Tribunal is right in law in reducing penalty levied u/s 45(6) of the Act to 20%." 3. On considering the impugned judgment and order passed by the learned Tribunal, it appears that the learned Tribunal has remanded the matter to the first authority/assessing authority to calculate the amount of tax/refund in accordance with law. While remanding the matter, the learned Tribunal has considered the matter in detail and has observed as under:- "So far as the second appeal 60 of 2010 is concerned, the appella....
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....cerned, the assessing authority has levied interest of Rs. 18,759 on late payment, which is not disputed here in present appeal. Therefore, the said levy of interest is not required to be discussed here or in any way required to be changed. The appellant has contended the levy of interest on ad-hock payment. The assessing authority has charged interest of Rs. 2,15,190 under section 47(4A) without mentioning subsection under which, the said interest was levied. But he has mentioned that the said interest was levied for late payment of purchase tax i.e. purchase tax under section 15B. It was the contention of the learned advocate, that as the appellant had not shown the said amount as taxable in returns, the appellant cannot be burdened with interest under Section 47(4A)(a). And it was also contended by him that the tax was paid well before the assessment, hence, there was no difference between tax already paid and tax assessed. He, therefore, contended that he cannot be made liable to pay interest under section 47(4A)(b). We do not find ourselves in agreement with the contention of the learned advocate, because what ever the appellant had paid was tax, and in assessment he was he....
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.... the date of assessment is required to be taken into consideration if the interest is paid by the appellant on such payment as it is not in accordance with the provisions of Sub-section (1)(2) or (3) of Sec.47 of the Act. Once such interest is paid or payable, the appellant is not again required to pay interest for such period while considering the differential amount of tax under the provisions of Section 47(4A)(b) of the Act. We are taking this view keeping in mind the provision contained in section 47(4A) with its sub-clauses. In our opinion any ad-hoc or lump sum payment made by the appellant prior to the date of assessment, reassessment or revision as the case may be is in relation to transaction with (which?) the appellant ought to have disclosed in his returns and the payment of tax which the appellant ought to have made in accordance with the provisions contained in section 47(1)(2) or (3) of the Act. In view of the above observations of this Tribunal, we are of the view that as the ad-hoc payment cannot be said to be payment in accordance with sub-suction (1)(2) or (3) Sec.47, the appellant is held liable to pay interest on such ad-hoc payment also. But the interest so ....
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.... Therefore, the tax assessed was more than 25% of tax paid and the appellant was primarily liable to pay penalty under section 45(6). The appellant submitted that there were uncertainly about the provision of section 15B, some matter were pending before the Hon. High Court, considering same as reasonable cause penalty under section 45(6) was not leviable. He further submitted that even in any case if penalty was leviable than also considering the facts some token amount was leviable. Considering submission made by the appellant and further considering that the appellant had paid entire tax before the assessment we reduced the penalty to 20% of the tax demand of Rs. 2,81,428." 4. Considering the above, as such, it cannot be said that the learned Tribunal has committed any error in passing the impugned judgment and order. The learned Tribunal has dealt with all the issues with respect to turnover the tax levied under Section 10A; interest charged under Section 47(4A)(a); interest charged under Section 47(4B) and penalty levied under Section 45(6) of the Act in extenso. The learned Tribunal has specifically observed and held against the assessee and in favour of the Government that ....