TMI Blog2017 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... is automatic for which neither any assessment order is required nor any notice of demand. In view of provision of Section 33 of the U.P. Value Added Tax Act which are mutatis mutandis applicable to entry tax, the petitioner is liable for payment of interest on such delayed payment of entry tax for the above period of 15 months irrespective of the fact whether such a direction for payment of interest is contained in the assessment order or not. Petition dismissed - decided against petitioner. - Writ Tax No. 43 of 2017 - - - Dated:- 7-7-2017 - Hon'ble Pankaj Mithal And Hon'ble Vinod Kumar Misra, JJ. For the Petitioner : Suyash Agarwal,Rakesh Ranjan Agarwal For the Respondent : C.S.C. ORDER The dispute in this petition relates to interest on tax under the U.P. Tax on Entry of Goods Into Local Areas Act, 2007 (hereinafter referred to as Entry Tax Act) of the assessment year 2010-11. The petitioner has invoked the writ jurisdiction for quashing of the recovery notice no. 789 dated 31.1.2017 demanding a sum of ₹ 35,36,199/- as interest on the amount of entry tax of ₹ 1,76.75,224/- of the assessment year 2010-11 for the period 1.10.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.2016 ordered to rectify the assessment order upholding the liability of payment of ₹ 33,36,199/- as interest on account of delayed payment of part of the entry tax as aforesaid. The said order was however, set aside by the Additional Commissioner (appeals) vide order dated 18th November 2016 and it was held that the correction of such a nature in the assessment order does not fall within the purview of Section 31 of the VAT Act. In this way, the assessment of entry tax for the assessment year 2010-11 as done vide order dated 30.12.2013 become final and conclusive and the correction of the same so as to realize interest for the delayed payment of part of it was turned down. Notwithstanding the above, the petitioner has been served with the impugned notice dated 13.1.2017 again demanding interest of ₹ 33,36,199/- for the period of 15 months for the delayed payment of part of the entry tax amounting to ₹ 1,76,75,224/- for the assessment year 2010-11. Sri Rakesh Ranjan Agrawal, Senior Advocate assisted by Sri Suyash Agrawal, learned counsel for the petitioner in challenging the above notice contended that the petitioner is a bonafide tax payer and had depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 and 33 of the U.P. VAT Act apart from other, are applicable to proceedings under the Entry Tax Act. Section 31 of the VAT Act is for rectification of the mistake in the orders passed by any of the authorities under the Act within a period of three years from the date of the order sought to be rectified. Section 33 of the Act lays down the procedure for payment and recovery of tax. It provides that any amount of tax, fee, penalty or any other amount which a dealer or a person is liable to pay under the Act shall be deposited by him in the manner and in prescribed time, failing which simple interest @ one and quarter percent per mensum shall become due and payable on the unpaid amount w.e.f.,the last date prescribed for payment till the date of payment of such amount. It further provides that the amount of tax assessed, if in excess of the amount of tax already deposited, the amount of interest payable thereon or any amount imposed by way of penalty shall be deposited within 30 days of the service of the order of assessment/notice of payment. It also postulates for charging simple interest @ 1% per annum on the unpaid amount of tax assessed, reassessed or enhanced by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malafide or bonafide of the assessee in payment of the tax are not relevant and the argument of the assessee based upon the decision of the Allahabad High Court in Annpurna Biscuit Vs. State of U.P. 1980 UPTC 1320 was not accepted. The decision of the Supreme Court in Kalyan Kumar Ray Vs. Commissioner of Income Tax West Bengal-IV Kolkata 1992 Supplement (2) SCC 424 though in connection with the Income Tax Act squirely covers the field in laying down that assessment is one integrated process involving not only the assessment of the total income but also the determination of the tax and as of practice the order of assessment passed by the Assessing Authority is followed by the tax calculation giving the net amount payable by the assessee which exercise is normally done by the staff though checked and signed by the Assessing Officer and the notice of demand based upon such calculation can not be said to be faulty. The said view has been accepted recently by the Supreme court in the case of Commissioner of Income Tax Vs. Bhagat Construction Company Private Limited (2016) 383 ITR 9 (SC). This was also a case under the Income Tax Act. The Assessment Order therein failed to contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on the assessee along with the I.T.N.S. 65. That will enable the assessee to have the full details necessary to enable him to file a proper appeal, if needed, against the order and demand. If these safeguards are not taken, there is a danger of the tax calculations being left entirely to the subordinate staff, the ITO contending himself with a cursory glance thereat. This means that though there may not be any necessity for passing any direction for payment of interest on the delay if any in payment of admitted tax or any separate order of assessment but it is prudent to enclose the calculation of the net amount of tax, interest or penalty along with the assessment order so that the assessee, if not satisfied with either the assessment of tax or the calculation of the net amount payable or the interest part of it may have a proper opportunity to appeal against the same. In the case at hand there is no dispute that entry tax for the assessment year was last payable by 1.10.2010 but the petitioner had deposited a part of the same amounting to ₹ 1,76,75,224/- on 3.1.2012, with the delay of about 15 months. Therefore, in view of provision of Section 33 of the U.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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