TMI Blog1992 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... is a process of manufacture and a different commodity is manufactured therefrom, then the petitioner has to be given the benefit of concessional rate of tax under section 5C of the Act. This Court has already examined this matter in the assessee s own case in Revision Petition No. 3 of 1990 decided on November 26, 1991 (Assam Roller Flour Mills v. Commercial Taxes Officer), wherein after taking into consideration the provisions of section 5A as substituted by Act No. 8 of 1990, which was retrospective in nature, it was held that the assessee is entitled to claim the set-off of the excess amount of tax paid by him on his purchases. In that case, the order of the Tribunal was quashed and the assessing authority was directed to verify the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it was held that the penalty imposed at the stage of provisional assessment can be revised at the time of regular assessment without recourse to the provisions contained under section 12 or 17. It was further held in that case that the penalty imposed was part of the assessment, could be challenged in appeal against the final order although no appeal had been filed against the earlier penalty order passed under section 7B. The earlier penalty order must be treated to be only provisional and not final. In the present case, since an appeal was preferred and revision was also preferred against the order for levy of penalty and the penalty was confirmed, the Sales Tax Tribunal was of the view that the assessing authority was bound in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 7B is not on correct facts and figures and may even enhance tax liability on the basis of further information or evidence which may be received by the assessing authority. The very object of provisional assessment is the immediate realisation of tax, which is due to the Government and has not been paid by evading or avoiding the same. The said assessment is made subject to the provisions of sub-section (4) of section 7 of the Act, which contemplates that payment made under section 7B is also provisional subject to necessary adjustments in pursuance of the final assessment of tax for any year under section 10. Thus the contingency at the time of final assessment could not be anticipated in the proceedings under section 7B. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty is levied at the stage of provisional assessment, it can be revised at the time of assessment without recourse to the provisions contained in section 12 or 17 is contrary to the scheme of the Act itself. The Rajasthan Sales Tax Tribunal has observed that levy of penalty under section 16(1)(e) in the proceedings under section 7B of the Act, which was upheld by the Board of Revenue in the proceedings under section 14 of the Act cannot be allowed to be challenged. Therefore, it is correct interpretation of law that the penalty orders are not provisional but are final. The proper course for the assessee was to challenge the order of the Board of Revenue in the reference proceedings under section 15 of the Act and since the assessee has fail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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