TMI Blog2015 (3) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... st the demand of tax upon reassessment. Under these circumstances, the element of avoidance of tax could be said as lacking. - Decided against the revenue. - TAX APPEAL NO. 858 of 2014 - - - Dated:- 26-3-2015 - M.R. Shah and S.H. Vora, JJ. Mr Chintan Dave, Asstt. Government Pleader for the Appellant Mr Manish Kaji, for the Respondent JUDGMENT Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as Tribunal ) in Second Appeal No.518/2012 insofar as deleting the interest and penalty of ₹ 28,160/and ₹ 1,56,404/respectively, the Revenue has preferred the present Tax Appeal. 2. At the outset it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue is squarely covered against the Revenue in view of the decision of the Division Bench of this Court dated 19.01.2015 in the case of State of Gujarat vs. Dashmesh Hydraulic Machinery rendered in Tax Appeal No.28/2015. 4.1 In the case of Dashmesh Hydraulic Machinery (Supra), in paras 6, 7 and 8, the Division Bench has observed and held as under: 6. We may record that this Court in the above referred Tax Appeal No.1284 of 2014 vide its decision dated 25.11.2014 had observed thus: 1. State is in appeal against the judgment of the Gujarat Value Added Tax Tribunal ( the Tribunal for short) proposing following questions for our consideration: (1) Whether Tribunal erred in deleting levy of interest and penalty merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Added Tax Act, which pertains to the power of the Commissioner to impose penalty, begins with the expression if a Commissioner is satisfied that the dealer, in order to evade or avoid payment of tax........ Under the circumstances, the basic intention of attempting to evade or avoid payment of taxes would be necessary for imposing penalty. 4. When the Tribunal found on facts that in view of availability of input tax credit as against the assessed additional tax, there was no intention on part of the assessee to avoid payment of taxes, no question of law arises. Tax appeal is dismissed. Civil Application also dismissed. 7. Same situation arises in the present matter inasmuch as the demand is confirmed and the adjustment is permit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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