Madhya Pradesh High Court
Anil Kumar Jagawani vs Divisional Deputy Comm. & Ors on 28 February, 2013
W.P.No.965/2004
Anil Kumar Jagwani Divisional Deputy Commissioner,
Commercial Tax, Jabalpur & another
1
28.2.2013
Shri Sandesh Jain, counsel for petitioner.
Shri Vivek Agarwal, G.A., for respondents.
This petition is directed against an order Annexure P-7 dated 8.11.2002, by which a penalty under section 69(2) of the Commercial Tax Act, 1994 (hereinafter referred to as 'Act' for short) was imposed on the petitioner and order Annexure P-12 dated 18.3.2003, by which a revision filed against the order Annexure P-7 was dismissed.
The contentions of the petitioner are as under :-
(1) That the petitioner was not liable for the penalty as the petitioner had already paid more than 80% tax assessed vide Annexure P-4.
(2) That the assessment order Annexure P-4 dated 27.3.2002, by which the petitioner's sale was enhanced to Rs.8,28,873/- was modified in appeal, vide order Annexure P-14 dated 2.12.2005 and enhancement of aforesaid sale was reduced to the extent of Rs.2,72,500/- and similarly liability of tax was also reduced. It was submitted that taking cognizance of the order Annexure P-14, penalty order Annexure P-7 and revisional order Annexure P-12 may be quashed.
He has placed reliance to a Single Bench judgment of this Court in W.P.No.2322/2004 (Ashok Agrawal Vs. The Divisional Dy.Commissioner, Commercial Tax & another) in support of his contention.
Shri Vivek Agarwal, learned G.A., supported the order passed by the authority and submitted that the penalty order W.P.No.965/2004 Anil Kumar Jagwani Divisional Deputy Commissioner, Commercial Tax, Jabalpur & another 2 and revisional order were rightly passed against the petitioner. During inspection certain documents were found in the premises of petitioner, because of which sale of Rs.8,28,873/- was enhanced, so there is no error in the penalty order and the revisional order passed by the authority. It is also submitted that the revisional order Annexure P-12 was passed much prior to the appellate order Annexure P-14, so on the basis of subsequent order penalty order cannot be set aside.
To appreciate the rival contentions of the parties, it would be appropriate if factual position in the case is stated. The petitioner was an assessee under the Commercial Tax Act. The petitioner's premises were inspected by the authorities of Commercial Tax Department and during inspection certain papers were found and the petitioner on the date of inspection deposited Rs.17,011/- and Rs.25,175/-, total Rs.42,186/- by two cheques and thereafter on 18.12.2000 further Rs.43,150/- by way of cheque. Thus the petitioner had paid Rs.85,336/- towards the tax. During the course of assessment, initially the tax was assessed for Rs.52,642/- and penalty was also imposed on the petitioner. The liability of tax amount was assessed Rs.36,232/- and 5 times of the penalty Rs.1,81,160/- was imposed upon the petitioner.
In this case it was not in dispute that the penalty order Annexure P-7 is dated 8.11.2002, which proceedings were initiated immediately after passing of the assessment order Annexure P-4 27.3.2002. Against the penalty order Annexure P-7, petitioner had preferred a revision before the authority, W.P.No.965/2004 Anil Kumar Jagwani Divisional Deputy Commissioner, Commercial Tax, Jabalpur & another 3 but it was dismissed on 18.8.2003. It appears that the appeal against the assessment order Annexure P-4 dated 27.3.2002 was heard and decided subsequently on 2.12.2005 vide Annexure P-14 and certain deductions were made in the order of assessment Annexure P-4. The net result of order Annexure P-14 is that the additions and tax imposed upon the petitioner were reduced substantially and naturally the tax was reduced in the appellate order. Petitioner is entitled for reduction of penalty on the basis of subsequent order in appeal. However it is to be looked into by the revisional authority by passing a fresh order in the revision, after extending an opportunity of hearing to the petitioner.
Accordingly, we set aside order Annexure P-12 dated 18.8.2003 passed by respondent no.1 in case no.Revision88/Prantiya/2003 and No.89/Entry Tax/2003 and direct respondent no.1 to take cognizance of the order dated 2.12.2005 Annexure P-14 passed by the appellate authority, by which the tax liability on the appellant was reduced substantially and to pass a fresh order, after extending an opportunity of hearing to the petitioner. While passing such an order, the revisional authority shall be within its jurisdiction to consider the provisions of section 69(2) of the Act and to decide whether the tax deposited by the petitioner was more than 80% of the tax assessed vide order Annexure P-14. The reivsional authority shall also consider the contention of the petitioner, that in such circumstances, 5 times penalty could not have been imposed. If it is found that the petitioner is W.P.No.965/2004 Anil Kumar Jagwani Divisional Deputy Commissioner, Commercial Tax, Jabalpur & another 4 entitled for lesser penalty in comparison to the earlier imposition of penalty, the penalty amount deposited by the petitioner shall be given due adjustment by the respondent. The revisional authority shall consider and decide the aforesaid matter expeditiously, as far as possible, within a period of three months from the date of communication of the order. The petitioner shall cause appearance before the respondent no.1 in this regard on 25th March, 2013, for which date no fresh notice shall be necessary to the petitioner and on the aforesaid date the respondent no.1 after restoring the revisional file shall proceed in the matter, in accordance with law. Considering the facts of the case, there shall be no order as to costs.
C.C., as per rules.
(Krishn Kumar Lahoti) (M.A.Siddiqui)
JUDGE JUDGE
M.