TMI Blog2006 (9) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... "). To prefer an appeal from the order of the Commissioner the appellant was required to deposit the amount so directed to be paid on protest. The appellant, however, did not deposit the disputed amount and filed an application for dispensation of the deposit. The Tribunal heard the said application and admitted the appeal on condition that the appellant must deposit Rs. 5.00 lacs towards duty, Rs. 2.00 lacs towards penalty and Rs. 11.00 lacs by adjustment of the amount if available in Modvat Account. The rest of the demand was stayed by the tribunal. The appellant filed another application for modification, inter alia, praying for dispensation of such deposit. The tribunal refused to modify the said order and only extended the period for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority the appellant was required to pay Rs. 26,12,689/- (Rs. 16.00 lacs - Rs. 1,11,072.00 = Rs. 14,88,928.00 + Rs. 9,23,681.00). 2. Being aggrieved by and dissatisfied with the order of the designated authority the appellant filed the instant writ petition. The same was heard and disposed of by the learned Single Judge by His Lordship's judgment and order dated April 4, 2003. His Lordship held that the designated authority correctly adjudicated the amount under the said scheme and there was no scope for interference. The appellant, being aggrieved by and dissatisfied with the judgment by His Lordship, filed the instant appeal. 3. We have heard the parties. We have perused the written notes of submission submitted on behalf of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. - Where a declarant has already paid either voluntarily or under protest, any amount of duties, cesses, interest, fine or penalty specified in this sub-clause, on or before the date of making a declaration by him under section 88 which includes any deposit made by him pending any appeal or in pursuance of a court order in relation to such duties, cesses, interest, fine or penalty, such payment shall not be deemed to be the amount unpaid for the purposes of determining tax arrear under this sub-clause." 5. In the instant case Commissioner assessed the duty as well as penalty and interest. When the appeal was filed the Tribunal directed deposit of a sum of Rs. 16.00 lacs. The appellant, however, deposited only a sum of Rs. 1,11,072.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on the date of declaration. Our observation is supported by the explanation quoted (supra) where it was categorically made clear that to determine the tax arrear the deposit or payment already made either voluntarily or under protest or in terms of order by any authority would not be taken into account meaning thereby the legislature wanted collection of 50% of unpaid tax by way of settlement of tax disputes. Hence, to determine the amount the designated authority was only to find out what was the actual amount due to the Revenue as on the date of making of the declaration. The authority had no power to find out as to whether there was any default on the part of the assessee in making deposit of any amount in terms of any order of any fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appreciate how the designated authority could bifurcate the duty so assessed by the Commissioner for the purpose of adjudication of the tax arrear within the meaning of the said scheme of 1998. 8. The learned Judge, in our view, was not right in holding that allowing the writ petition would amount to allowing the petitioner to take advantage of his wrong which was wholly undesirable. Such decision of His Lordship, with all humility, we say, is not proper in deciding the subject controversy. The Government wanted to collect the disputed tax by giving opportunity to the assessees to resolve the dispute by making payment of 50%. Whether such dispute was tenable or not or whether the assessees were entitled to raise such dispute, was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Dr. Mrs. Renuka Datla Ors. v. Commissioner of Income Tax) 10. We, however, feel it expedient to quote a passage from the decision in the case of Dr. Mrs. Renuka Datla Ors. (supra). "On an analysis of these provisions, it is clear that a person could avail of the benefit of the scheme, if :- (1) there was a determination of the amount of tax, etc., on or before March 31, 1998; [section 87(m)(i)]; and (2) the determination has been modified in consequence of giving effect to an appellate order; (ibid) and (3) the declaration had been filed in the prescribed form before the designated authority between September 1, 1998, and December 31, 1998 (sections 88, 89); and (4) the amount of the modified demand has remained unpaid on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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