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2014 (4) TMI 366 - UTTARAKHAND HIGH COURTDeduction of Tax at source – Levy of Penalty – Can it be said that the action of the assessee demonstrated animus or ill will or deliberate refusal to discharge its statutory obligation – Opportunity of being heard – Section 35(8) of Uttarakhand VAT Act, 2005 - Held that:- The provision permitting imposition of penalty is u/s 35(8) of the Act - Before a penalty is imposed the person to be penalized must be heard - Person concerned gets an opportunity to explain his conduct - Having regard to such conduct, a discretion has been granted to impose penalty - That can be as much as twice the amount deducted, but not so deposited in Government Treasury – Here amount deducted was deposited into Government Treasury - Before that simultaneously with the deductions an attempt was made to deposit the deducted amount, but the same could not be deposited as the banker of the AO did not agree to accept an outstation bankers draft - The fact remains that for delayed payment, assessee has already paid statutory interest. Authorities below did not exercise their discretion of imposing penalty, this court set aside the order of the AO imposing penalty, the appellate order as well as the order of the Tribunal – Matter could have been remit, but since it is pending since 2006, we apply the thumb rule and assess the penalty at ₹ 25,000/- - The revision is disposed of – Decided partly in favour of assessee.
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