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TMI Blog2013 (2) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Act at four per cent. With effect from April 1, 2007, granite metal was deleted from the purview of the entry, if it is produced with the aid of crushing machines and from April 1, 2007 it became assessable at 12.5 per cent. For the year 2009-10, the petitioner alleges that electronic filing of the return was introduced for the first time. It is his further case that with the help of the staff of the Department, in the monthly return, the entry generated was "industrial inputs coming under the Third Schedule" instead of "crushed metal". Resultantly, the petitioner would say that he showed the rate of tax at four per cent. On realising the mistake, the petitioner filed revised return on August 7, 2010. He paid the differential tax with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the return is rejected, reasons must be furnished to the assessee, not later than the due date for filing of the return for the subsequent period, inter alia. He would, therefore, submit that the petitioner cannot be faulted, particularly bearing in mind that the proceedings are penal in nature. The petitioner acted bona fide. He would further emphasise that this is a case where the Government had extended the date to file the annual return to August 31, 2010 and that return was filed within that period. He would submit that the return was not rejected and, therefore, the reliance which has been placed by all the authorities including the Tribunal on section 79B and section 22(9) is without basis. Learned counsel for the petitioner would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more. The officer issued summons to the petitioner to appear on August 18, 2010. On August 17, 2010 the petitioner reported that due to bonus discussion and labour problems, he could not appear on August 18, 2010 and he requested for a date after Onam and also sought permission to file revised return for the year 200910. He filed a reply with a revised return for the year 2009-10 on September 7, 2010 (it is common case that it was filed on August 9, 2010). We notice further from the penalty order that the contention taken by the petitioner was that the amendment did not come to its notice and so the rate adopted from the commencement of the Act was continued. He contended further that there was proper reason to believe that even the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment, there is no case before the Intelligence Officer justifying describing "granite" in the return for the year 2009-10 as "industrial inputs coming under the Third Schedule" when for the previous years after the amendment came into force with effect from April 1, 2007, the petitioner had been showing the very same materials as "granite". Therefore, we cannot say that the decision of the officer to impose penalty is illegal or without any basis. Having regard to the provisions contained in section 22(9) and section 79B of the Act, there is a clear bar to the acceptance of revised return, once penal action was initiated. Undoubtedly, penal action was initiated prior to the petitioner filing the revised return. Therefore, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing the rate of tax came into force by a public document. The petitioner has shown the rate of tax incorrectly, rendering the return an incorrect return. Therefore, we do not think that in the facts of this case we should interfere with the decision of the authority as confirmed by the two appellate authorities to impose penalty on the petitioner. But, we also feel that having regard to all circumstances, in particular, the provisions contained in rules 24D(4) and 35 and also the admitted fact that the petitioner has paid the entire amount of tax with interest and settlement fee, the amount of penalty should be further reduced. In the circumstances, we modify the order passed by the Tribunal by directing that the petitioner will be liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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