TMI Blog2012 (4) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to a delay (period/time wise) in making the payment of tax to the State but is charged at a flat rate of 25 per cent of the additional tax payable as per the revised returns - In the present case, the interest is being charged at a flat rate and has no relation to the length of time(delay) in making the payment of tax - Petition is dismissed - WRIT PETITION No. 162 OF 2012 - - - Dated:- 29-3-2012 - DR. D.Y. CHANDRACHUD M.S. SANKLECHA, JJ. Shri. S.P. Surte with Shri. P.V.Surte Counsel for the Petitioner. Shri.D.A.Nalawade, Govt. Pleader and Shri. V. A. Sonpal A Panel Counsel for the Respondent. JUDGMENT ( Per M.S. SANKLECHA, J.): This petition under Article 226 of the Constitution of India challenges an Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof will come into force with effect from 1 July 2009. Sub section (4) of Section 30 as introduced into the Act reads as under: (4) if - (a) After the commencement of,- (i) audit of the business of the dealer in respect of any period , or (ii) inspection of the accounts, registers and documents pertaining to any period, kept at any place of business of the dealer, or (iii) entry and search of any place of business or any other place where the dealer has kept his accounts, registers, documents pertaining to any period or stock of goods. (b) in consequence of any intimation issued under sub section (7) of section 63, the dealer files one or more returns or, as the case may be, revised returns in respect of the said period, then h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notices dated 13 July 2011 and inter alia pointed out that no interest could be imposed for the reason that Section 30(4) of the Act would not operate with retrospective effect for the period 2005-06, 2006-07 and 2007-08, as Section 30(4) came into effect only from 1 July 2009. Consequently, the demand for interest under Section 30(4) was asserted to be bad in law. Therefore, Petitioner No.1 requested that the proceedings for recovery of interest under Section 30(4) of the Act be dropped. i) Three Orders all dated 23 September 2011 were passed by the Deputy Commissioner of Sales Tax, each for the period 2005-06, 2006-07 and 2007-08 confirming imposition of interest under Section 30(4) of the Act. j) Being aggrieved by the three Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the matter of Nitco Paints (P) ltd. dated 12 July 2010 (44MTJ 207) is misplaced and in any event the same has been set aside by this court on 10 June 2011 and remanded to the Deputy Commissioner for fresh adjudication. 4) As against the above, Counsel for the Respondent does not dispute that there is no alternate remedy available to the petitioner in respect of the Orders dated 23 September 2011 imposing interest under Section 30(4) of the Act. However it is his contention that no writ be issued in the present case as the Orders dated 23 September, 2011 are perfectly just and valid. Counsel for the Respondent submits that the Orders dated 23 September 2011 do not apply Section 30(4) with retrospective effect inasmuch as the audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of interest keeping in view the delay in paying the taxes but provides for a flat rate depending upon the quantum of additional tax payable consequent to filing of the revised return. The demand for interest is not for the period prior to 1 July 2009 as the interest is being charged not with regard to a delay (period/time wise) in making the payment of tax to the State but is charged at a flat rate of 25 per cent of the additional tax payable as per the revised returns. In the circumstances, in the present case, no interest is being charged for the period prior to 1 July 2009. Consequently, Section 30(4) of the Act is not being applied retrospectively. This is particularly so as all the acts leading to the demand of interest such as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue was not disturbed by the Order dated 10 June 2011 of this Court. The second issue dealt with imposition of penalty without considering the response of the assessee for non imposition of penalty, ignoring the fact that the imposition of penalty is discretionary and it was on this issue that the matter was remanded to the Deputy Commissioner of Sales tax for fresh adjudication. Therefore the reliance upon the above decision in the three Orders dated 23 September 2011 is not misplaced and this Court has not disturbed the findings of the Sales Tax Tribunal in its Order dated 10 June 2011 on the first issue which alone is relevant to the present case. 7) From the record, we find that the Petitioners have annexed to the Petition two deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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