2004 (2) TMI 20

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....tent of his holding was 49 acres 23 guntas. It is not in dispute that the assessee grows coffee in his land. For the subsequent year, i.e., for the year 2000-01, while filing Form No. 23 the petitioner had indicated that his extent of holding is not 49 acres 23 guntas but a lesser extent and accordingly paid Rs. 33,706 on August 20, 2002. The Assistant Commissioner of Agricultural Income-tax by notice dated August 8, 2002, purporting to be under section 66 read with section 32(3) of the Act called upon the assessee to indicate as to why he should not be called upon to pay penal interest as per section 42(1) of the Act as the entire amount payable on opting for composition had not bee" paid within the permitted time, a sum of Rs. 33,706 w....

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.... of section 41(1) or section 41(2) had not been followed or attracted there is no occasion for the respondent to levy penalty envisaged under section 42 is the submission. Learned counsel also submits that there is no other enabling provision under the Act to levy such a penalty on the amount of Rs. 33,706 and as such when no provision has been made under the Act itself for levy of penalty or interest on such amount, the respondent cannot call upon the petitioner to pay this amount. Learned counsel submits that the amount being in the nature of penalty as mentioned in the provisions, it is not open to the respondent to levy such amount without due authority of law, de hors the provisions of the Act and therefore submits that the demand f....

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....e period between July 31, 2000, and August 20, 2002, on the differential amount of Rs. 33,706. After hearing learned counsel for the petitioner and the learned Government Pleader and after perusing the respective pleadings and the provisions of the Act, I am of the view that there is every justification on the part of the respondent in invoking the provisions of section 42 of the Act and calling upon the petitioner to pay the penalty/interest envisaged under this provision. Though Sri Parathasarathi, learned counsel for the petitioner, has contended that when once a situation contemplated under section 42(1)(ii)(a) has not occurred there is no justification to levy any penalty under section 42 particularly as there was neither an orde....

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....1999, and up to August 20, 2002, when the assessee made payment of the deficit. In a case where the assessee opts for payment of tax by way of composition the period envisaged under sub-clause (a) of clause (ii) of sub-section (1) of section 42 gets automatically determined by the statutory operation, to be the period between July 31, of the year and the date of payment of the amount sought to be paid by way of composition. This is so because there being no assessment order, there is no occasion for issue of the demand notice indicating the upper limit for payment of tax based on the assessment order beyond which period the assessee becomes a defaulter. In a case where the assessee opts for composition such assessee becomes a defaulter if t....