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2018 (6) TMI 1632 - HC - VAT and Sales TaxSimultaneous orders of assessment and penalty - transaction entered into by HLL with UCIL - HLL would claim that it merely chartered UCIL's trawlers on lease and paid a lump sum amount per month, which was inclusive of the lease rental, and in consequence, UCIL delivered the month's catch to it - export turnover - section 5(3) of the Central Sales Tax Act, 1956 - HELD THAT:- There is no embargo in the statutory scheme as to passing of orders of assessment and penalty simultaneously, it would essentially depend upon the individual facts of the case to decide the correctness of such procedure. Presently, when the issue of penalty was specifically remanded to be decided along with main assessment, no demonstrable prejudice was caused to HLL by passing of orders simultaneously. Levy of penalty - HELD THAT:- In Hindus- tan Steel Ltd. v. State of Orissa [1969 (8) TMI 31 - SUPREME COURT], the Supreme Court observed that an order imposing penalty for failure to carry out a statutory obligation is the result of a quasi criminal proceeding and penalty would not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct, contumacious or dishonest, or acted in conscious disregard of its obligation. It was further observed that penalty should not be imposed merely because it is lawful to do so and it would be a matter of discretion to be exercised judicially, upon consideration of all relevant circumstances. However, the mere fact that there was disagreement between the Members of the earlier Bench of the STAT is not enough to make the subject issue so contentious as to extend the benefit of the above decisions to HLL.-Significantly, the levy of penalty on HLL under the proceedings dated December 28, 1998 was not for the first time. The earlier levy of penalty was set aside by the ADC and the matter was remanded back to the CTO to be decided along with the quantum addition - There was no necessity for the CTO to again call upon HLL to explain as to why it should not be visited with penalty, as the order of remand covered both the quantum addition as well as the penalty. In consequence, passing of the assessment order and the penalty order on the same day, viz., December 28, 1998, does not amount to a vital irregularity. Even otherwise, the facts bear out that but for the inspection of UCIL's premises and detection of the agreement dated October 12, 1984 and the supporting material, the non-disclosure of purchase of shrimps by HLL from UCIL would not have come to light and HLL would have gotten away with suppression of this transaction. Such a deliberate and wilful act of non-disclosure therefore attracted penalty and as there were no mitigating circumstances, the levy of highest penalty also cannot be found fault with. This court finds no merit in the claims of HLL - petition allowed.
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