TMI Blog2009 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... batch of Civil Appeals to the respective High Courts - 3397 OF 2003 - - - Dated:- 5-5-2009 - S.H. KAPADIA and AFTAB ALAM, JJ. Mr. K. Radhakrishnan, Sr.Adv., Mr. Navin Prakash, Adv., Mr. C.V. Subba Rao, Adv., Ms. Ambica Radhakrishnan, Adv., Mr. P. Parmeswaran, Adv., Mr. B. Krishna Prasad., for the Appellant. Mr. S.K. Bagaria, Sr.Adv., in CA.4317/2007: Mr. Tarun Gulati, Adv.Mr. Rony O. John, Adv., Mr. Praveen Kumar, Adv., Mr. E.C. Agrawala, Mr. K.J. John, Adv., M/S. K.J. John Co., Advs., for the Respondent. [ORDER] - Before the Gujarat High Court, Ambuja Synthetics Mills (assessee) had challenged the validity of Rule 96ZQ(5)(ii), which reads as under: "Rule 96ZQ(5)(ii): (5) If an independent processor fails to pay the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections (1) and (2) of Section 7 was not with a view to facilitate the evasion of entry tax." 3. The Apex Court pointed out that, "if a registered dealer is unable to satisfy the authorities in this regard then, in the absence of satisfaction, the presumption is that non-submission of statement has facilitated the evasion of entry tax". It is in view of this that the Apex Court held that the Section does not suffer from any vice and the Section is required to be construed to mean that the presumption contained therein is rebuttable and secondly, the penalty stipulated therein is only the maximum amount which would be levied and the assessing authority has the discretion to levy lesser amount depending upon the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under the said section is a civil liability. Wilful concealment is not an essential ingredient for attracting the civil liability as is the case in the matter of prosecution under Section 276C of the Act. While considering an appeal against an order made under Section 271(1)(c) what is required to be examined is the record which the officer imposing the penalty had before him and if that record can sustain the finding there had been concealment, that would be sufficient to sustain the penalty. Keeping in mind these two circumstances, we are of the view that the judgment of the Division Bench in the case of Dilip N. Shroff Vs. Joint Commissioner of Income Tax, Mumbai (supra) needs consideration. The Explanations added to Section 271( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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