TMI Blog2015 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... , subject to however that the difference of tax paid and tax assessed exceeds 10% of the tax paid. - there is no substance in the main tax appeal and the impugned judgment and order passed by the learned Tribunal is not required to be interfered with by this Court, to issue Rule in the present application for condonation of delay, call upon the respondent, to condone the delay and thereafter, to dismiss the appeal would, as such, be exercise in futility or the same be unnecessary burden upon the respondent. - Decided against Revenue. - CIVIL APPLICATION (OJ) NO. 224 of 2015 In STAMP NUMBER NO. 605 of 2015 With STAMP NUMBER NO. 606 of 2015 - - - Dated:- 13-3-2015 - MR. M.R. SHAH AND MR. S.H.VORA, JJ. FOR THE APPELLANT : MR CHINTAN DAVE AGP ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1. The present application under Section 5 of the Limitation Act has been preferred by the applicant-State of Gujarat requesting to condone the delay of 119 days in preferring tax appeal against the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal dated 31.07.2014 passed in Second Appeal No.60 of 2010. 2. To prima facie satisfy ourselve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessing authority had wrongly invoked the provision of section 47(4B) of the Act and had wrongly adjusted the ad-hock payment towards the interest and penalty, as he was not liable to pay interest under sub-sec. (4A). (4) The assessing authority had wrongly levied penalty of ₹ 1,88,666 under section 45(6) as the difference between tax paid and tax assessed was less than 25%. The said penalty was levied without considering the fact that the appellant had paid ad-hock tax before the assessment. We have heard the learned advocate for the appellant and the learned Government Agent. It is not in dispute that the turnover tax was leviable after allowing deduction of ₹ 50,00,000 from turnover of sales or purchase. As per the provision of section 10A of the Act the turnover tax was leviable only on turnover of sales and purchase above ₹ 50 lakhas. It can be seen from the assessment order that the total turnover including branch transfer outside Gujarat was ₹ 2,38,70,378. The assessing authority has allowed branch transfer of ₹ 2,06,45,800 and ₹ 20,80,022 as interstate sales. Therefore, the net turnover for the purpose of TOT under section 10A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has calculated purchase tax of ₹ 3,43,375 and after allowing set off under Rules 42E, of ₹ 44,539 the appellant was held liable to pay net PT of ₹ 2,98,836. This Tribunal had studied the statutory provisions relating to Sect.47(4A), the proviso and the citations on the subject and the contentions raised in that behalf by the parties in the case M/s.T.J. Agro Fertilizers Pvt.Ltd. V/s. The State of Gujarat (SA Nos.529 530 of 2000 with SA No.1052 of 2002) and this Tribunal stated thus: On true interpretation of the provision of Section 47(4A) read with sub-sections as well as proviso, we are of the view that the appellant is liable to pay interest on the amount of tax not paid as per the provisions contained in Section 47(1)(2) and (3) of the Act, till he makes the balance payment of tax and once such payment is made prior to the date of assessment or reassessment or revision and thereafter, there would not be any more liability of tax on assessment or reassessment than the amount of tax already paid by the appellant prior to the date of assessment or reassessment, in that case, the appellant is not required to pay any interest. We, therefore, hold that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment i.e. 29/03/2000. So far as the interest under section 47(4B) is concerned the said provision is not charging provision. If any amount is payable and the dealer pay lesser amount than amount so paid shall be first adjusted against the interest, penalty and thereafter tax. Here in present case the amount was paid ad-hoc, which was not against any liability. No liability was assessed or quantified when payment was made. Therefore there was no question to adjust the ad-hoc payment against any interest and penalty. We, therefore, remove the interest levied by the assessing authority by invoking the provision of section 47(4B). So far as the penalty levied under Sec.45(6) is concerned, the provisions relating to penalty under Sec.45(6) does not call for any clarification, because they are self explanatory. Sec.45(5) says that if the dealer concerned had paid the amount of tax as per Sec.47(1),(2) or (3) and on assessment the amount of tax payable exceeds the amount of tax already paid by 25% of the tax paid, the dealer concerned shall be liable to pay penalty under Sec.45(6). Such penalty shall not exceed one and half times of the differential amount. The provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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