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Bansal Dye Chem Pvt. Ltd. Versus Commissioner Value Added Tax, Delhi & Another

2015 (10) TMI 109 - DELHI HIGH COURT

Levy of penalty on the Appellant Assessee under Section 86(10) of the DVAT Act without issuing notice to the Assessee - Held that:- No notice was issued to the Assessee by the VATO on the aspect of penalty. The mere fact that the Assessee had paid the penalty under protest would not preclude it from questioning the levy of penalty on the ground that the basic procedural requirement was not fulfilled by the VATO. - Assessment of penalty is an exercise separate from the main assessment for determi .....

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February 2013 by the VATO under Section 32 of the DVAT Act read with Rule 36 (1) of the DVAT Rules in Form 24. On the same day the VATO passed the penalty order, without any service of prior notice on the Assessee. The VATO sent to the assessee the penalty order as a “Notice of Assessment of Penalty” under Rule 36 (2) of the DVAT Rules in Form 24A. The Assessee was simply called upon to deposit the penalty amount already determined by the VATO.

As the penalty order dated 24th February .....

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Dated:- 24-9-2015 - Dr. S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr A. K. Babbar and Mr Surinder Kumar, Advocates For the Respondents : Mr Gautam Narayan, Additional Standing Counsel (Civil) and GNCTD appearing ORDER Dr. S. Muralidhar, J. 1. This appeal by the Assessee, Bansal Dye Chemical Private Ltd., under Section 81 of the Delhi Value Added Tax Act, 2004 ( DVAT Act ) is directed against the impugned order dated 28th April 2015 passed by the Value Added Tax Appellate Tribunal .....

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r dated 21st January 2014 dismissed the appeal of the Assessee against the order dated 26th April 2013 of the VATO on the ground that the Assessee had already paid the penalty. The AT has by the impugned order confirmed the penalty. 4. The brief facts, as articulated by Mr. A.K. Babbar, learned counsel for the Appellant, are that the Assessee s premises were surveyed on 16th November 2012. Variation in cash and stock was found. The VATO enhanced the gross profit and levied tax, interest and pena .....

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the finding of the VATO as far as the levy of tax and interest was concerned, the Assessee accepted that it had filed a return with incorrect particulars. Therefore, there cannot be any mitigating circumstances as far as Section 86(10) is concerned. 6. The fact remains that no notice was issued to the Assessee by the VATO on the aspect of penalty. The mere fact that the Assessee had paid the penalty under protest would not preclude it from questioning the levy of penalty on the ground that the b .....

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nder this Act has arisen, the Commissioner, after recording the reason in writing, shall make and serve on the person a notice of assessment of the penalty that is due under this Act. (2) The amount of any penalty assessed under this section is due and payable on the date on which the notice of assessment is served by the Commissioner. (3) Any assessment made under this section shall be without prejudice to prosecution for any offence under this Act. Explanation.- A person may, if he disagrees w .....

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underscore the need for the VATO to observe the principles of natural justice while making the penalty order. This entails serving on the Assessee a separate notice to show cause why penalty should not be imposed and affording the Assessee an opportunity of being heard prior to passing the penalty order. The imposition of penalty is not a mechanical or automatic exercise but requires application of mind by the assessing authority to the facts and circumstances of the case. The fact that an Asse .....

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ng. Mr. Randhir Chawla, learned counsel for the petitioner has placed reliance upon the order of this Court dated 19th July, 2010 passed in W.P.(C) 10527/2009. Having heard the learned counsel for the parties, we are of the opinion that petitioner ought to have been given an opportunity of hearing prior to levy of penalty. Consequently, we set aside the penalty order and remit the matter to the Value Added Tax Officer to pass appropriate orders in accordance with law after giving an opportunity .....

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