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2014 (6) TMI 866 - KERALA HIGH COURTPenalty u/s 76 & 78 - Failure to remit tax - penalty u/s 76 and 78 simultaneously imposed - petitioner contends that, the amendment brought by introduction, of the Proviso, on 10.05.2008, has not been brought to the notice of the learned single Judge. - Adjustment in penalty imposed with already deposited - Held that:- it is seen that the assessing authority has taken into account the amendment, brought in. In page 4, paragraph 4, the penalty imposed under Section 76 is only till 10.05.2008; ie., till the date of amendment and the introduction of the proviso which bars imposition of penalty under Section 76 of the Act if penalty under Section 78 of the Act is imposed. In such circumstance, the contentions raised by the petitioner regarding the illegality in the levy of penalty cannot be sustained. - Decided against the assessee. Adjustment of penalty already paid - Held that:- the amounts already paid have also been taken into account. Ext.P5 is an order issued, pursuant to the directions of this Court directing credit to be given to all payments effected by the petitioner. - credit of penalty already deposited to be given - decided in favor of assessee. Adjustment of penalty levied i.e. to be reduced to the extent amount of service tax has been deposited earlier - Held that:- Such amounts cannot be adjusted, since, penalty under Section 78 of the Act has to be on the defaulted amounts subject to a maximum of double the actual amounts due. The petitioner having failed to remit any amounts as tax in the relevant years, no adjustments can be made in the penalty levied, on the basis of amounts paid subsequent to the relevant years. Pray to keep the recovery proceedings in abeyance till the additional 4th respondent pays the amounts to the petitioner - Held that:- no direction can be issued to keep in abeyance the demand of tax assessed and penalty levied, on that ground, under Article 226 of the Constitution of India. However, considering the fervent plea made by the learned counsel for the petitioner, the petitioner shall be permitted to pay the amounts due in instalments. - entire amount allowed to be deposited in five installments - Decided partly in favour of assessee.
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