TMI Blog2011 (5) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of entry tax was refunded to the petitioner. After reassessment under section 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. Thus the impugned order dated December 4, 2009, insofar as it relates to imposition of penalty, is hereby quashed. - Writ Petition No. 7454 of 2010 - - - Dated:- 2-5-2011 - KIRAN KUMAR LAHOTI AND SUSHMA SHRIVATSAVA, JJ. Sanjay Mishra for the petitioner K.K. Dubey, Penal Lawyer, for the respondents ORDER This petition is directed against an order (annexure P4) dated December 4, 2009, passed by the Commercial Tax Officer, Sagar Circle I in Cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , penalty could not have been imposed, as there was no mistake on the part of the dealer and until and unless, reassessment is attributable to the dealer, penalty cannot be imposed. The learned counsel appearing for the respondents though supported the order but has not disputed the aforesaid factual position. Section 28(1) of the Commercial Tax Act, 1994 provides thus: 28. (1) Where an assessment has been made under this Act or the Act repealed by this Act and if for any reason any sale or purchase of goods chargeable to tax under this Act or the Act repealed by this Act during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom or a set off has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so for penalty. The learned counsel appearing for the petitioner submitted that the dealer had already deposited the amount of tax, but the Commercial Tax Officer refunded the amount to the petitioner and the liability of tax was not denied by the petitioner. Apart from this, there was no omission on the part of the dealer in refunding the amount and it was in fact error on the part of the Commercial Tax Officer who directed for refund of the tax, then such penalty could not have been imposed. Though, learned counsel for the State tried to support the aforesaid order but in the facts of the present case, it is apparent that there was no omission, error or default on the part of the petitioner, on the contrary petitioner had deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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