TMI Blog2006 (5) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi and Andhra Pradesh High Courts in CIT v. Maharishi Ved Vigyan Vishwa Vidya Peetham[ 1997 (11) TMI 75 - DELHI HIGH COURT] , City Dry Fish Company v. CIT[ 1999 (1) TMI 13 - ANDHRA PRADESH HIGH COURT] and Commissioner of Wealth-tax v. Ajay Kumar Sood [ 1995 (10) TMI 41 - DELHI HIGH COURT] . Respectfully following the above pronunciation of law, we find that since the issue raised in the case is covered by the division Bench judgment of this court, it will not be in the fitness of things to direct the Tribunal to refer the question of law to this court and keep the matter pending. To avoid unnecessary wastage of time, in our view it would be appropriate to answer the question straightaway by converting the case into a reference. Thus, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty proceedings afresh? (vii) Whether, on the facts and circumstances of the case, penalty proceedings can be initiated within eight years (the time-limit under section 40) or it can only be initiated within five years (the period prescribed in the Act for the best judgment assessment)? (viii) Whether, on the facts and circumstances of the case, penalty can or cannot be imposed in the absence of mens rea? (ix) Whether, on the facts and circumstances of the case, penalty can or cannot be imposed for the alleged fault under bona fide belief of the dealer? However, at the time of hearing, the counsel for the petitioner pressed only questions at serial Nos. (iii) and (iv), which are now being considered. Brief facts of the case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al vide order dated December 9, 1991. The facts of the case, as mentioned above are not in dispute as the same are borne out from the orders on record. As far as question No. (iii) regarding levy of tax on the supply of lubricants and spare parts during warranty is concerned, learned counsel fairly submitted that the issue involved therein is covered against the petitioner by the judgment of the honourable Supreme Court of India in Mohd. Ekram Khan Sons v. Commissioner of Trade Tax, U.P. [2004] 136 STC 515. In view of this, question No. (iii) does not arise for consideration by this court. As far as question No. (iv) is concerned, the counsel submitted that the same stands settled by the honourable Supreme Court of India in the case of J.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidely or intentionally evaded to pay the tax thus incurring the liability to pay the interest within the meaning of sub-section (5) of section 25 of the Act. The demand regarding payment of interest is also vague, ambiguous and without the authority of law. The petitioners cannot be directed to make the payment of interest for any period prior to the actual demand made for the payment of purchase tax under the provisions of the Act. The impugned order in so far as it directs the payment of interest is liable to be quashed. . . In the present case, the revisional authority had levied interest on the petitioner from May, 1985 to January, 1989 vide revisional order dated January 23, 1989. Meaning thereby that interest was levied for the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any public interest. In view of these facts, it does not appear to be necessary to direct the Tribunal to state the case and make a reference to this court. 8.. It deserves notice that while dealing with the provisions of the Income-tax Act, 1922, their Lordships of the Supreme Court had considered a similar matter in the case of Commissioner of Income-tax v. Jai Parkash Om Parkash Company Ltd. [1964] 52 ITR 23 (SC). It was held by their Lordships that while considering an application under section 66(2) which corresponds to section 256(2) of the 1961 Act, the High Court could not decide the case and answer the question without calling upon the Tribunal to make a reference. Similar view was also taken by their Lordships of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STC 163 and Maharana and Maharana v. State of Orissa [1991] 82 STC 242. 10.. We are also of the view that while construing the provisions of a statute, the principle of 'updating construction' should be adopted. It means that 'a construction that continuously updates' the working of an on-going Act has to be followed. In other words, it means that 'in its application on any date, the language of the Act though necessarily embedded in its own time is nevertheless to be construed in accordance with the need to treat it as current law'. The principle has been quoted in (1999) 102 Taxman (Tax Literature/Tax Controversy) 135, at page 141 by Mr. Sanjay Bansal as under: 'In construing an ongoing Act, the interpreter is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
