TMI Blog2023 (7) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ed officer has not taken into consideration the amount of tax of Rs. 48,75,000/- paid by the petitioner and, therefore, he has wrongly calculated the amount of interest and penalty, which is not permissible - It is further reflected from the record that separate application for stay was also filed by the petitioner before the appellate authority and the appellate authority has considered the amount of Rs. 48,75,000/- paid by way of tax by the petitioner to the concerned respondent authority and, therefore, the appellant authority has granted stay on 25.05.2017 in favour of the petitioner against the recovery. It is also pertinent to note that against the aforesaid order passed by this Court, the State preferred SLP in STATE OF GUJARAT AND ANR. VERSUS SAFAL DEVELOPERS AND ANR. [ 2016 (10) TMI 1383 - SC ORDER] before the Hon ble Supreme Court and the Hon ble Supreme Court has dismissed the SLP preferred by the State and thereby the Hon ble Supreme Court has not interfered with the order passed by this Court in the aforesaid case. The respondents have committed an error while rejecting the application submitted by the petitioner under the amnesty scheme as the petitioner had al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or order directing the first appellate authority to restore the first appeal of the Petitioner for the year 2012-13 under the CST Act and also revive the stay order which already granted earlier. E. Pending notice, admission and final hearing of this petition, this Hon ble Court may be pleased to stay the operation, execution and implementation of the impugned bank attachment order (annexed at Annexure K), the Petitioner may be permitted to operate the bank account; F. xxx xxx xxx. G. xxx xxx xxx. 4. Heard learned advocate, Mr. Uchit N. Sheth for the petitioner and learned AGP Mr. Pranav Trivedi for the respondents. 5. The brief facts leading to the filing of the present petition are as under, 5.1 It is the case of the petitioner that the petitioner is engaged in the business of manufacture and sale of Ceramic Tiles and the petitioner was duly registered under the Central Sales Tax Act, 1956 (hereinafter referred to as the Act ). It is stated that the assessment order was passed under the Act for the year 2012-13, wherein tax was demanded with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the petitioner has preferred present petition. 6. Learned advocate, Mr. Sheth appearing for the petitioner has referred to the documents, which are placed on record. It is submitted that as per the amnesty scheme, an amount of tax paid by the concerned applicant beneficiary prior to filing of the application under the scheme is required to be taken into consideration as per the amnesty scheme. It is further stated that if the amount of tax is paid, remission with interest and penalty will be granted. It is submitted that the petitioner paid an amount of Rs. 48,75,000/- even prior to the order of assessment was passed by the concerned officer, however while passing an order of assessment, the said amount of tax paid by the petitioner was not taken into consideration by the said authority. Learned advocate has referred to the assessment order, copy of which is placed on record at Page Nos. 14-17 of the compilation. At this stage, it is submitted that the petitioner challenged the said order by filing first appeal before the appellate authority and along with the said appeal, stay application was also preferred and as the petitioner had already paid tax amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled to get remission as per the amnesty scheme for the reason that initially the petitioner had paid an amount of Rs. 48,75,000/- on 01.07.2015 at the time of spot inspection and assessment and, thereafter, the order of assessment has been passed in the year 2017 and, therefore, the said amount was not considered by the concerned competent authority at the time of passing Assessment Order. It is also pointed out that the office of the Deputy Commissioner, State Tax Circle 22 had completed the assessment on 31.03.2017 and as per the said assessment, total claim amounting to Rs. 77,77,575/- (including tax amount of Rs. 38,03,216/- + interest amount of Rs. 30,23,556/- + penalty amount of Rs. 9,50,823/-). It is further submitted that at the time of filing of the appeal before the Joint Commissioner, State Tax, Rajkot, the said amount of Rs. 48,75,000/- was not considered and, therefore, the respondent no. 3 being subordinate to higher authority would not be in a position to consider the same by granting any remission to the petitioner. Learned AGP, therefore, submitted that no illegality is committed by the concerned respondent while rejecting the application submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as the concerned deponent is subordinate to the higher authority, which had passed the order of assessment, he would not be in a position to consider the payment of Rs. 48,75,000/- paid by the petitioner even prior to the order of assessment was passed and, therefore, remission under the scheme was not granted to the petitioner. 13. At this stage, we would like to refer to the order passed by this Court in case of Safal Developers (supra), wherein this Court has observed in Paragraph Nos. 10 and 13 as under, 10. On behalf of the respondents, it has been contended that in view of paragraph 7 of the Scheme, the petitioners are not entitled to the benefit of the Scheme as the amount of tax and interest has been paid prior to the Scheme having been brought into effect. As noticed earlier, paragraph 7 of the Scheme provides that the dealers shall be entitled to the benefit of the Scheme only after the payment of the taxes payable under the Scheme during the period of the Scheme. In the opinion of this court, the contention that in cases where the tax and interest have been paid prior to the coming into force of the Scheme, the Scheme would not be applicable, does not appear to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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