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STATE OF GUJARAT Versus ESDEE PAINTS LTD.

2015 (6) TMI 664 - GUJARAT HIGH COURT

Levy of turnover tax - Section 10A - turnover tax was leviable only on turnover of sales and purchase above ₹ 50 lakhas. - 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 - Held that:- Tribunal has not committed any error in passing the impugned judgment and order. The learned Tribunal has dealt with all the issues with respect to turnover t .....

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nterest so levied, would be limited from the date of expiry of time prescribed to the date when the ad-hoc payment was made, 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 del .....

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ed 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 ourselves whether there is any substance in the appeal and as, if prima facie, it is found that there is no substance in the appeal, in that case, to issue Rule in the present application for condonation of delay, cal .....

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interest under section 47(4A) of the Act is not leviable till the date of assessment order? (3) Whether the Hon ble Tribunal is right in law in holding that interest u/s 47(4A) is not leviable if difference between tax assessed and tax paid does not exceed 10%? (4) Whether the Hon ble Tribunal is right in law in reducing penalty levied u/s 45(6) of the Act to 20%. 3. On considering the impugned judgment and order passed by the learned Tribunal, it appears that the learned Tribunal has remanded .....

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,168 against the liability of purchase tax under section 15B. He has further stated that he was compelled to make said payment without passing any assessment order or any provisional order. He had made said payment of ₹ 3,05,168 on 29/03/2000. And he has raised following grounds. (1) Turnover tax of ₹ 15,050 levied by the assessing authority, under section 10A of the Act, was not leviable. Because he had turnover below the threshold limit of 50,00,000. (2) The assessing authority had .....

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en 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 .....

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herefore, remove the turnover tax of ₹ 15,500 which was levied by the learned assessing authority and confirmed by the learned first appellate authority. As far as the ground of levy of interest is concerned, the assessing authority has levied interest of ₹ 18,759 on late payment, which is not disputed here in present appeal. Therefore, the said levy of interest is not required to be discussed here or in any way required to be changed. The appellant has contended the levy of interest .....

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nd it was also contended by him that the tax was paid well before the assessment, hence, there was no difference between tax already paid and tax assessed. He, therefore, contended that he cannot be made liable to pay interest under section 47(4A)(b). We do not find ourselves in agreement with the contention of the learned advocate, because what ever the appellant had paid was tax, and in assessment he was held liable to pay purchase tax under section 15B. The learned Government Agent also submi .....

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wn as payable in returns nor he had accepted his liability to pay in returns. It was paid only because the visiting officer had compelled him to pay and same was on account of purchase tax liability under section 15B. The assessing authority 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 pro .....

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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 the judgment of this Tribunal in the case of Bombay Paints Ltd., .....

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tion (1)(2) or (3) of Sec.47 of the Act. Once such interest is paid or payable, the appellant is not again required to pay interest for such period while considering the differential amount of tax under the provisions of Section 47(4A)(b) of the Act. We are taking this view keeping in mind the provision contained in section 47(4A) with its sub-clauses. In our opinion any ad-hoc or lump sum payment made by the appellant prior to the date of assessment, reassessment or revision as the case may be .....

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the interest so levied, would be limited form the date of expiry of the time prescribed to the date when the ad-hoc payment is made, subject to however that the difference of the tax paid and tax assessed exceeds 10% of the tax paid. In the above view of the matter, if the appellant had made ad-hoc payment with interest, he would not be liable to pay further interest. In present case, the assessing authority had assessed tax of ₹ 4,51,105. We remove the turnover tax of paid ₹ 15,050. .....

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y 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 und .....

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. The provisions of Sec.45(5) and 45(6) read together says that if the amount of difference exceeds 25%, the dealer concerned shall be deemed to have failed to pay tax and accordingly would be liable to pay penalty not exceeding one and one half times of the difference. In the present case, the tax assessed after removal of TOT would be ₹ 4,36,155 the appellant had paid ₹ 1,54,727 with return, under Sec.47(1),(2) or (3). Therefore, the tax assessed was more than 25% of tax paid and t .....

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he appellant had paid entire tax before the assessment we reduced the penalty to 20% of the tax demand of ₹ 2,81,428. 4. Considering the above, as such, it cannot be said that the learned Tribunal has committed any error in passing the impugned judgment and order. The learned Tribunal has dealt with all the issues with respect to turnover the tax levied under Section 10A; interest charged under Section 47(4A)(a); interest charged under Section 47(4B) and penalty levied under Section 45(6) .....

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