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TMI Blog2019 (6) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... is that there is no substantive provision in the Entry Tax Act providing for the levy of interest on belated payment of tax and penalty, in the absence of which the levy is liable to be quashed. 4. A feeble challenge is raised to the maintainability of the writ petition on the ground of availability of alternate remedy. I reject the same in limine since the question raised is a substantive, legal issue not involving any questions of fact, let alone disputed questions of fact, that can certainly be raised in a writ petition. 5. In my view, it is too well settled a proposition that interest may be levied only in the event of there being a specific, enabling and substantive provision in the Enactment in question, authorising such levy. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot extended to the machinery provisions which are construed like any other statute. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statue and not defeat the same. (See Whitney V. Commissioners of Inland Revenue [1926] AC 37, Commissioner of Income-tax Vs. Mahaliram Ramjidas [1940] 8 ITR 442 (PC), India United Mills Limited Vs. Commissioner of Excess Profits Tax [1955] 27 ITR 20 (SC) : [1955] 1 SCR 810 and Gursahai Saigal Vs. Commissioner of Income-tax [1963] 48 ITR 1 (SC) ; [1963] 3 SCR 893). But it must also be realised that provision by which the authority is empowered to levy and collect interest, even if construed as forming part of the machinery provisions, is substantive la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is accepted it leads to conflicts and creates certain anomalies which could never have been intended by the Legislature.' 8. At paragraph No.7, the Division Bench settles the proposition stating that 'interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf'. 9. After an extensive discussion, the Division Bench refers to the judgement of the Constitution Bench in Khemka and Co. (Agencies) Private Limited Vs. State of Maharastra [(1975) 35 STC 571] wherein, the provisions of Section 9(2) of the Central Sales Tax Act, 1956 had been analysed, concluding that there was no substantive provision in the Central Act enabling the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax due from a person liable to pay tax under this Act shall be assessed separately for such period as may be prescribed. (2) If the assessing authority is satisfied that the return furnished by a person liable to pay tax, is correct and complete, he shall assess the amount of tax due from the person on the basis of such return. (3) If the assessing authority is not satisfied that the return furnished by a person liable to pay tax, is correct and complete, and he thinks it necessary to require the presence of the person or production of further evidence, he shall serve on such person in the prescribed manner a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) If a person liable to pay the tax, furnishes a revised return in accordance with sub-Section (2) of Section 7, and if such revised return shows that a larger amount of tax than already paid is payable, he shall first pay into the Government treasury in the prescribed manner or to the assessing authority in cash or by cheque or Demand Draft the additional amount of tax according to such revised return. (4) The amount of- (i) tax due where return has been furnished without full payment thereof, (ii) difference in the tax assessed under Section 8 or reassessed under Section 9 for any period and the sum already paid by the person in respect of such period, and (iii) penalty (if any) levied under Section 15, shall be paid by the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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