2011 (5) TMI 890

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..... s ORDER This petition is directed against an order (annexure P4) dated December 4, 2009, passed by the Commercial Tax Officer, Sagar Circle I in Case No. 7 of 2008 for the assessment year April 1, 2004 to March 31, 2005, by which the Commercial Tax Officer reopened the case under section 28(1) of the Commercial Tax Act and liability of entry tax of Rs. 81,993 along with penalty of Rs. 81,993 was .....

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..... s imposed on the petitioner. It is submitted by the petitioner that respondent No. 2 committed an error of jurisdiction in imposing the penalty on the petitioner for the amount of tax, which was already paid and refunded to the petitioner vide order (annexure P2). That the tax was already deposited and after the earlier assessment, excess amount of tax was refunded to the petitioner. Even after .....

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..... at any time within five calendar years from the date of order of assessment after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings the tax payable by such dealer and the Commissioner may, where the .....

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..... mmercial Tax Officer had refunded excess amount of tax to the petitioner. On reopening the assessment, another Commercial Tax Officer found that the aforesaid amount was payable for entry tax and the dealer was liable not only for payment of tax but also for penalty. The learned counsel appearing for the petitioner submitted that the dealer had already deposited the amount of tax, but the Commerc .....

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..... on 28(1) of the Commercial Tax Act, if the petitioner was found liable for payment of the tax, which was earlier deposited and refunded to him then no penalty could have been imposed on the petitioner. In view of the aforesaid, the impugned order dated December 4, 2009, insofar as it relates to imposition of penalty, is hereby quashed. Considering the facts of the case, petitioner shall be entit .....

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