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2022 (12) TMI 463 - HC - VAT and Sales TaxLevy of penalty under Section 42(5) of the OVAT Act - contention of the Petitioner is that upon adjustment of the ineligible ITC from the surplus ITC available, no tax would be due is to no avail since the treatment by the 1st Appellate Authority of the surplus ineligible ITC as tax due by the Petitioner has affirmed by the Tribunal and no question in that regard has been framed by this Court. HELD THAT:- The decisions in STATE OF GUJARAT VERSUS JAY STEEL AND TUBES TRADERS [2015 (2) TMI 372 - GUJARAT HIGH COURT] andSTATE OF GUJARAT VERSUS NISHI COMMUNICATION [2015 (2) TMI 927 - GUJARAT HIGH COURT] are clearly distinguishable in view of the wording of Section 42(5) of the OVAT Act when compared to Section 34(7) of Gujarat Value Added Tax Act which beings the expression “if the Commissioner is satisfied that the dealer in order to evade or avoid payment of tax”. In other words, under Section 34 (7) of the GVAT Act an element of discretion is available to the Assessing Authority while imposing penalty, Section 42(5) of the OVAT Act does not. This Court answers the question framed in the affirmative i.e. in favour of the Department and against the Petitioner-Assessee. The revision petitions are accordingly dismissed, but in the circumstances, with no other as to costs.
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