TMI Blog2010 (4) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... September 7, 2009, in our view, was fully justified. - - - - - Dated:- 22-4-2010 - KHEHAR J.S. C.J. AND SUDHANSHU DHULIA , JJ. JUDGMENT:- The judgment of the court was delivered by J.S. KHEHAR C.J. The issue pertains to deposit of TDS. It is not a matter of dispute that TDS was factually deducted by the respondent. The aforesaid deduction was made during the months of February and March, 2006. The deposit thereof had to be made within one month. The said deposit was liable to be made by the respondent in the Government Treasury. The aforesaid deposit was eventually made on May 16, 2006. The assessing officer while examining the issue in hand, exercising the power vested in him under section 35(8) of the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as, the Act of 2005 ) imposed penalty equivalent to twice the amount of TDS payable. The instant issue determined by the assessing officer was assailed by the respondent before the Joint Commissioner (Appeal) II, Commercial Tax, Dehradun, Uttarakhand. The aforesaid appeal was, however, dismissed by the appellate authority on October 4, 2007. The order rendered by the appellate authority on October 4, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment; or (c) any local authority, any corporation or undertaking constituted by or under a Central Act or a State Act; or (d) any co-operative society or any other society, club, firm or other association of persons or a company, whether incorporated or not, the person responsible for making such payment to the lessor (who is transferring the right to use any goods) for discharge of liabilities under such agreement, shall at the time of making such payment to the lessor, either in cash or by credit or any other manner, deduct an amount at the rate of four per cent of such sum towards part or, as the case may be, full satisfaction of the tax payable under this Act on account of such transfer of right to use any goods: Provided that the assessing authority may, if satisfied that it is expedient in the public interest so to do and for reasons to be recorded in writing, order that in any case or class of cases no such deduction shall be made or, as the case may be, such deduction shall be made at a lesser rate: Provided further that where any deduction has been made by a contractor from the payment made to his sub-contractor in accordance with sub-section (3), the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) or in sub-section (2) or in sub-section (3), fails to make the deduction or after deducting fails to deposit the amount so deducted as required in sub-section (4), the assessing authority may, after giving such person an opportunity of being heard, by order in writing, direct that such person shall pay, by way of penalty, a sum not exceeding twice the amount deductible under this section but not so deducted and, if deducted, not so deposited into Government Treasury. (9) Without prejudice to the provisions of sub-section (8), if any such person fails to make the deduction or, after deducting, fails to deposit the amount so deducted, he shall be liable to pay simple interest at the rate of fifteen per cent per annum on the amount deductible under this section but not so deducted and, if deducted, not so deposited from the date on which such amount was deductible to the date on which such amount is actually deposited. (10) Where the amount has not been deposited after deduction, such amount together with interest referred to in sub-section (9) shall be a charge upon all the assets of the person concerned. (11) Payment by way of deduction in accordance with sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alent to twice the amount of TDS liable to be deposited. We have already noticed hereinabove that it was discretionary for the assessing officer to determine the quantum of penalty that could be imposed. The maximum penalty envisaged under section 35(4) of the Act of 2005 undoubtedly is twice the amount of TDS liable to be deposited. But then, the facts and circumstances of every case are liable to be taken into consideration, while determining the quantum of penalty, that ought to be imposed in a case. Insofar as the present controversy is concerned, the factual position was noticed by the Commercial Tax Tribunal, Uttarakhand in the impugned order dated September 7, 2009 to the following effect: On behalf of dealer learned advocate Sri B.S. Rawat appeared and it was stated by him that the appellant (dealer) is a registered limited company under the Indian Companies Act, 1956, by whom the work of establishment of power house for production and distribution of electricity in the State of Uttarakhand has been done. The construction work of power house has been got executed through M/s. IVRCL Infrastructures Projects Ltd., Srinagar, District Pauri Garhwal (Contractor). As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office at Hyderabad for the issuance of new bank draft; and the bank has taken time in cancellation of these bank drafts and preparation of new drafts. On April 24, 2006, State Bank of India, Hyderabad has issued bank drafts in favour of Assistant Commissioner, Commercial Tax payable at State Bank of India. In the meantime when the aforesaid contractor made contact with the dealer; on the pressure of the assessing officer of the contractor, the Assistant Commissioner, Commercial Tax, Srinagar for the deposit of this amount at Srinagar, aforesaid drafts were made available to the contractor by the dealer in Hyderabad itself on April 24, 2006, because the benefit of deduction of advance tax in the form of TDS related to the contractor is to be availed to the contractor itself. The said contractor, being registered within the jurisdiction of the Assistant Commissioner, Commercial Tax, Srinagar, has deposited the aforementioned bank drafts in the SBI, Pauri on April 28, 2006 as per Rules, for which the challans of deposit amount have been issued by the State Bank of India, Pauri on May 16, 2006. As such due to the time taken by the bank in collection, delay in transfer of aforemention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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