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2022 (5) TMI 1188 - MADRAS HIGH COURTValidity of assessment order - failure to file return - Revenue issued notice twice, despite that, no reply had been given by the petitioner - HELD THAT:- Every month return has to be filed, knowing well with that position, the petitioner dealer has not come forward to file the return and pay the tax. Therefore, notice was issued twice, despite that, no reply has been given and thereafter, assessment order has been passed, the tax component as well as the interest and penalty having been quantified was imposed against the petitioner, which the petitioner had paid only in January 2020 except the penalty. Penalty - HELD THAT:- Section 73 of the Act since has been invoked for imposing penalty that is a wrong invocation and if at all the petitioner case is to be considered and it should be considered only under Section 61 of the Act and in that, Section 61(2) enables the Revenue to make only the tax as well as the collection of interest and not for penalty. Therefore, the penalty imposed against the petitioner is not inconsonance with the said provisions of the Act. After the assessment order is made, within thirty days if the petitioner comes forward to file the return, then the order of assessment can be withdrawn. However, the late fee and the interest imposed on the dealer shall be paid by him. Here in the case in hand, even that chance was not utilised by the petitioner, as admittedly, he has not filed the return and paid the tax within thirty days from the date of receipt of the assessment order. Therefore, Section 62(2), as claimed by the petitioner counsel, would not come to the rescue of the petitioner dealer - Insofar as the invocation of Section 73 is concerned, no doubt it is a correct provision which has been invoked by the respondent Revenue as so many components are provided under 73 like determination of tax not paid, short paid, erroneously refunded or no tax credit are utilised etc. The determination of tax which has not been paid as one of the factor which can be gone into by the Revenue under the provisions of Section 73, hence such an invocation cannot be found fault with. Therefore, that ground also urged by the learned counsel appearing for the petitioner is untenable, hence, it is liable to be rejected. Therefore, for all these reasons, this Court is not inclined to entertain this writ petition as the impugned orders are tenable - Petition dismissed.
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