TMI Blog2018 (2) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... protected. This Court finds that the assessee was not having liquid funds available in its bank account when the admitted tax was to be deposited. This explanation submitted by the assessee was accepted by the assessing authority and four days time was allowed for the purpose. The assessee in fact had deposited the amount of admitted tax alongwith interest but by a delay of two days. Once the statute itself confers discretion upon the authority concerned and the imposition of penalty is not automatic, the authority concerned is expected to take into consideration relevant facts and circumstances that are placed before it. The exercise of jurisdiction to levy penalty in the facts and circumstances is not proper - revision allowed. - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) to deposit the tax due for any tax period within the prescribed or extended time; (b) to submit the tax return for any tax period in the prescribed manner. (the serial no 1 was substituted w.e.f. 20 08 2010 vide notif. no 1101(2) dt. 20 08 2010, U.P. Act No 19 of 2010) 3. Assessee is a dealer registered under the provisions of the Act and is engaged in trading of automobiles. For the month of November, 2009 the admitted amount of VAT payable by it had to be deposited by 20.12.2009. The assessee, however, was not having sufficient funds in its account, and therefore, made a request to the assessing authority to extend the time for depositing the admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as, paid the tax along with the interest @ 24 per cent. The interest @ 24 per cent, is very high and nobody would suffer that interest unless there are good reasons. Penalty under Section 15-A(1)(a) is leviable if there is no reasonable cause and the burden to prove the absence of a reasonable cause lies on the revenue. Apart from rejecting the dealer's explanation, it has brought no material on record to establish the absence of a reasonable cause. The approach of the Assessing Officer that there might be other bank accounts or over draft facilities merely shows that the approach is merely conjectural. As is evident the default was trifling and the State has not suffered any loss. On the other hand it has gained by earning 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taxing statutes the provisions are to be strictly construed. It is contended that once a finding is returned by the tribunal that reasonable cause was not explained by the assessee for the delay occasioned, the imposition of penalty is not liable to be interfered with. Reliance is placed upon a decision of the Apex Court in State of U.P. and others vs. Sukhpal Singh Bal reported in (2005) 7 SCC 615, para 15 thereof is relied upon and is reproduced hereinafter:- 15. In the light of the above judgments as applicable to the provisions of the said 1997 Act, we are of the view that the High Court had erred in striking down Section 10(3) as ultra vires Articles 14 and 19(1)(g) of the Constitution. Penalty is a slippery word and it has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in (2006) 5 SCC 361. Para 19, 29, 32, 33 and 35 are relied upon. Learned Standing Counsel also places reliance upon a decision of Apex Court in Director of Enforsement vs. MCTM Corporation Pvt. Ltd. and others reported in (1996) 2 SCC 471, para 7, 8, 11, 12 and 13 whereof are relied upon, for the purpose. 8. I have heard Sri Shubham Agarwal, learned counsel for the revisionist and Sri A.C. Tripathi, learned Standing Counsel for the State and perused the records. 9. Facts in issue are not disputed. It is admitted that the assessee has deposited tax late by two days. It is also not in dispute that on the relevant date when the admitted tax was to be deposited the assessee had no funds available in its bank account. It is, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To similar effect is the judgment of the Apex Court in Director of Enforcement (supra). The law is well settled but has no applicability in the facts of the present case. The situation is different in the facts of the present case. The taxing statute in question itself is a clear guide for resort to be had for levy of penalty. The provision clearly states that penalty of 20% of net tax payable would be leviable where the dealer is found to have defaulted in deposit of admitted tax without reasonable cause. The expression the dealer has without reasonable cause failed is an expression of wide import. The levy of penalty under the Act is not automatic. It is only when the assessee has failed to explain reasonable cause for not depositing ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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