TaxTMI 
TaxTMI 
2026 (6) TMI 1416
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....or short "the Tribunal") in Second Appeal No. 557 of 1998 with Second Appeal No. 215 of 1999. 3. This Court passed the following order on 29.10.2015 while admitting the appeals on substantial questions of law:- "1. Heard Ms. Maithili Mehta, learned Assistant Government Pleader for the appellant and Mr. Manish Kaji, learned advocate for the respondent. 2. The appellant has, in all, proposed three questions. Insofar as question No. 1 is concerned, Mr. Manish Kaji, learned advocate for the respondent has drawn the attention of the court to the judgment and order dated 9.7.2015 passed by this court in the case of Modipon Fiber Co. v. State of Gujarat rendered in Sales Tax Reference No. 5 of 2003 with Tax Appeal No. 1168 of 2014 and allied matters to submit that the controversy raised vide the said question stands concluded by the said decision in favour of the assessee. 3. Ms. Maithili Mehta, learned Assistant Government Pleader is not able to dispute the aforesaid position of law. 4. Under the circumstances, the ground raised vide proposed question No. 1 is hereby rejected. 5. Having regard to the submissions advanced by the learned advo....
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....A)(a) of the Act was assessed for late payment of tax. The penalty of Rs. 10,500/- was also imposed under Section 45(4) of the Act. 4.4. Being dissatisfied by the Assessment Order, the assessee preferred an appeal before the Assistant Commissioner of Sales Tax, who confirmed the order passed by the Sales Tax Officer. The assessee therefore, preferred Second Appeal before the Tribunal. 4.5. Similarly for the period 1993-94, the Assessing Officer assessed tax of Rs. 4,60,050/- and granted adjustment upon the tax paid of Rs. 4,14,432/- with differential amount of tax payable as per the return and tax actually paid. The interest under Section 47(4A)(a) of the Act amounting to Rs.66,843/- was charged for late payment of tax. The Sales Tax Officer also levied penalty of Rs. 1,67,379/- under Section 45(5) read with Section 45(6) of the Act on the ground that in the return filed by the assessee tax payable was shown as Rs.1,91,085/- though tax actually paid was at Rs. 4,14,432/-. The Assessing Officer, therefore, worked out the difference of tax assessed and tax paid at more than 25% and considered levy of penalty of 60% on such differential amount of Rs. 2,68,465/- so worked out and....
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....appellant is liable to pay interest under Section 47(4A)(b) of the Act. (iii) So far as the levy of penalty under Section 45(6) of the Act is concerned, considering the facts and circumstances of the case and the explanation furnished by the appellant, we reduce the said penalty in both the years to 10% of the tax. In absence of any details or discussion in the orders passed by the Authorities Below, we delete the penalty levied under Section 45(4) as well as composition fee charged under Rule 78 of the Rules. (iv) This Appeals, are accordingly partly allowed to the aforesaid extent, without any order as to costs." 5. Learned Assistant Government Pleader Mr. Jay Trivedi appearing for the appellant-revenue submitted that the Tribunal has committed an error in restricting the penalty to 10% of the tax instead of 90% levied by the Assessing Officer and further committed error in deleting penalty levied under Section 45(4) of the Act as well as composition fees charged under Rule 78 of the Rules. It was submitted that the Tribunal has not assigned any reason for reducing the penalty in both the years to 10% of the tax and, therefore, the order is without any reason....
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....g the appeals filed by the assessee. It was, therefore, submitted that the appeal filed by the Revenue may be dismissed and cross-objections preferred by the assessee are required to be allowed. 8. Having heard the learned advocates appearing for the parties and considering the facts of the case, the appeals are required to be considered for levy of the penalty under Section 45(4) of the Act read with Section 45(5) of the Act and Section 45(6) of the Act for the years 1993-94 and 1994-95. The relevant provisions of the Sales Tax Act read as under :- "45. Imposition of penalty in certain cases and bar to prosecution. (1) xxx xxx (2) xxx xxx (3) xxx xxx (4) If a dealer fails without sufficient cause to furnish any declaration or any return [as required by proviso to sub-section (1) or sub-section (2) of section 40.] the Commissioner may impose upon the dealer by way of penalty, a sum not exceeding two thousand rupees. (5) Where in the case of a dealer the amount of tax - (a) assessed by any period under Section 41 or 50 ; or (b) reassessed for any period under Section 44; exceeds the amount of tax alr....
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....t of any such tax payable by such dealer has been raised by the Gujarat Industrial Investment Corporation Limited or the Gujarat State Financial Corporation Limited, then such tax shall be deemed, in the public interest, to have been paid.] 47 (4A) (a) Where a dealer does not pay the amount of tax within the time prescribed for its payment under sub-section (1), (2) or (3), then there shall be paid by such dealer for the period commencing on the date of expiry of the aforesaid prescribed time and ending on date of payment of the amount of tax, simple interest, at the rate of [eighteen per cent,] per annum on the amount of tax not so paid or on any less amount thereof remaining unpaid during such period." 9. On perusal of the above provisions it is clear that the difference between the tax payable and tax paid is to be worked out for the purpose of levy of penalty. In the facts of the case, the Assessing Officer has committed error in computing difference between the tax payable and tax paid by considering the amount of tax paid shown in the return and ignored the actual tax paid by the assessee which is not in dispute. It is also pertinent to note that the Assessing Off....
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....n assessment year is 1993-94, 1994-95, 1995-96 respectively, the amount was paid on 23.4.1996, 23.9.1996 and 26.11.1996 and the order was passed subsequently on 21.9.1996, 31.8.1999 and 31.8.1999. Considering the above factual aspect in the matter, the observations made by the Honourable the Apex Court in case of J.K. Synthetics (supra), which would be applicable in the present case, read as under: "Let us look at the question from a slightly different angle. Section 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than fifteen days. The requirement of section 7(1) is undoubtedly a statutory requirement. The prescribed return must be accompanied by a receipt evidencing the deposit of full amount of "tax due" in the State Government on the basis of the return. That is the requirement of section 7(2). section 7(2A), no doubt, permits payment of tax at shorter intervals but the ultimate requirement is deposit of the full amount of "tax due" shown in the return. When section 11B(a) uses the expression "tax payable under sub s....