Uttarakhand High Court
Commissioner vs M/S Himalaya Polytech Pvt. Ltd on 22 April, 2024
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Delay Condonation Application (CLMA No.2328 of 2017)
IN
COMMERCIAL TAX REVISION NO. 33 OF 2017
22ND APRIL, 2024
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2332 of 2017)
IN
COMMERCIAL TAX REVISION NO. 24 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2333 of 2017)
IN
COMMERCIAL TAX REVISION NO. 25 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2327 of 2017)
IN
COMMERCIAL TAX REVISION NO. 26 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2326 of 2017)
IN
2
COMMERCIAL TAX REVISION NO. 27 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2325 of 2017)
IN
COMMERCIAL TAX REVISION NO. 28 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2331 of 2017)
IN
COMMERCIAL TAX REVISION NO. 29 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2334 of 2017)
IN
COMMERCIAL TAX REVISION NO. 30 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2330 of 2017)
IN
COMMERCIAL TAX REVISION NO. 31 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2324 of 2017)
3
IN
COMMERCIAL TAX REVISION NO. 32 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.2329 of 2017)
IN
COMMERCIAL TAX REVISION NO. 34 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.5628 of 2017)
IN
COMMERCIAL TAX REVISION NO. 55 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.5630 of 2017)
IN
COMMERCIAL TAX REVISION NO. 56 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.5634 of 2017)
IN
COMMERCIAL TAX REVISION NO. 57 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
4
Delay Condonation Application (CLMA No.5633 of 2017)
IN
COMMERCIAL TAX REVISION NO. 58 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.5632 of 2017)
IN
COMMERCIAL TAX REVISION NO. 59 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.5629 of 2017)
IN
COMMERCIAL TAX REVISION NO. 60 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
With
Delay Condonation Application (CLMA No.5631 of 2017)
IN
COMMERCIAL TAX REVISION NO. 61 OF 2017
Commissioner, Commercial Tax .....Revisionist.
Versus
M/s Himalaya Polytech Pvt. Ltd. ....Respondent.
Counsel for the Revisionist : Ms. Puja Banga, learned Brief
Holder.
Counsel for the Respondent : Mr. Aditya Singh, learned
counsel.
The Court made the following:
COMMON JUDGMENT:
(per Hon'ble The Chief Justice Ms. Ritu Bahri)
For the reasons stated in the affidavit(s), filed in
support of the delay condonation application(s), the same are
allowed, and the delay in filing the present revisions is
condoned.
2. The revisionist- Commercial Tax, Uttarakhand has
come up in revision(s) against the judgment of the
Commercial Tax Tribunal, Uttarakhand, Dehradun, dated
23.02.2016 (Annexure-1).
3. Facts are being taken from Commercial Tax
Revision No.33 of 2017.
4. Brief facts in all the cases are that the respondent-
M/s Himalaya Polytech Pvt. Ltd. is a registered dealer under
the Value Added Tax Act and is engaged in the business of
manufacture of pet bottles from plastic, polymer and grains.
The dealer made a delay in payment of the tax due for the
fourth quarterly period for 2013.
5. Vide order dated 31.10.2013 (Annexure-2), penalty
of Rs.2,10,904/- was imposed on the amount of tax due,
which was Rs.4,21,807/-, which was the maximum penalty
(50%). Against the order dated 31.10.2013 (Annexure-2),
the respondent- M/s Himalaya Polytech Pvt. Ltd. preferred
appeal before the Joint Commissioner, Commercial Tax, which
was allowed on 08.06.2015 and the penalty imposed was
reduced to Rs.1,05,452/-. The penalty was reduced from
50% to 25%. In the second appeals preferred by the
Assessee, the Tribunal further reduced the penalty from 25%
to 10% vide order dated 23.02.2016 (Annexure-1). Against
the order dated 23.02.2016 (Annexure-1), the revenue has
come up in these revisions.
6. Learned Brief Holder for the revisionist has argued
that as far as the quantum of penalty is involved, it is
governed by Section 58(1)(vii)(b) of the Uttarakhand Value
Added Tax Act, 2005. The minimum penalty is 10% of the
admitted tax, and 50% is the maximum penalty, and the
Assessing Officer has exercised its discretion as per the
mandate of the Legislature.
7. The Tribunal, thereafter, proceeded to examine the
judgments of the Hon'ble Supreme Court in M/s Hindustan
Steel vs. State of Orissa; Deputy Commissioner, Central
School Organization & another vs. J. Hussain, (2013)
10 SCC 106, as well as the judgments of the Allahabad High
Court in M/s Dhampur East Company vs. Commissioner
of Commercial Tax, U.P., 2004 NTN (Vol.24) 434; M/s
Jain Sons vs. Commissioner of Commercial Tax, 2000
NTN (Vol. 16), Page 139.
8. Relevant portion of Section 58 of the Act is as
under:-
"Section 58. Offences and Penalties.
(1) If the assessing authority is satisfied that any dealer
or other person has committed the offence in any clause of
column (1) of the following chart, it may, after such enquiry
as deemed necessary, direct that such dealer or person shall
pay, by way of penalty, in addition to the tax, if any, payable
by mentioned in the related column (2), namely-
Column-1 Column-2
Offences Penalties
* * * * * * * *
(vii) has, without any * * * *
reasonable cause failed-
(a) * * * *
(b) to pay within the (b) a sum not less than
time allowed the tax due ten percent, but not
under the provisions of exceeding twenty five
the Act; percent of the amount due if
* * * * the amount due is up to ten
thousand rupees and fifty
percent if the amount due
is above ten thousand
rupees.
* * * *
9. In the abovesaid judgments, the Hon'ble Supreme
Court and the Allahabad High Court have examined the
provisions of imposition of penalty for late deposit of tax with
interest, and have held that if penalty is to be imposed it is a
matter of discretion of the authority to be exercised judicially
and on a consideration of all the relevant circumstances. The
power should be exercised in reasonable manner and penalty
should not be imposed in each and every case when there is
a default. Imposition of penalty, mechanically, is highly
improper and cannot be approved. When punishment is found
to be outrageously disproportionate to the nature of charge,
then principle of proportionality comes into play. The question
of the choice and quantum of punishment is within the
jurisdiction and discretion of the court martial, and finally, if
dealer deposits the tax payable with interest prior to initiation
of penalty proceedings, then lenient view should be adopted
which assessing the quantum of penalty.
10. In the present case, the Assessing Authority has
imposed 50% penalty on the amount of admitted tax, which
the Appellate Authority has reduced to 25%, and the Tribunal
reduced it to 10% from 25%. The order of the Tribunal has
been passed after applying the ratio of the abovesaid
judgments of the Hon'ble Supreme Court and the Allahabad
High Court, and keeping in view that the tax had been
deposited with interest.
11. Since the Tribunal in CTR Nos.33/17, 24/17, 25/17,
26/17, 27/17, 28/17, 29/17, 30/17, 31/17, 32/17, 34/17,
55/17, 56/17, 57/17, 58/17, 59/17, 60/17 and 61/17 has
rightly followed the opinion of the Hon'ble Supreme Court as
well as other High Courts that power to levy penalty is a
discretionary power, and penalty should not be imposed in
each and every cases where there is a default, and imposition
of penalty, mechanically, is highly improper and cannot be
approved.
12. Recently, the Allahabad High Court in
Commissioner, Commercial Tax vs. Bhushan Power and
Steel Ltd., (2016) 60 NTN DX 21, dismissed the revision
filed by the Revenue against the order of the Tribunal dated
26.08.2015, whereby the Tribunal had set-aside the penalty
imposed on the assessee by observing that the assessee had
deposited the admitted tax late along with the interest.
Reference was also made to another judgment of the
Allahabad High Court in M/s Govind Sugar Mills Ltd. vs.
CTT, 2008 UPTC Page 991, wherein it has been held that
where the admitted tax is paid along with interest, it would
not be justified to impose any penalty.
13. In the facts of the present case, the penalty has
been reduced from 25% to 10%, and all the admitted returns
had been accepted as it is.
14. In view of the above, no question of law arises in
the present revisions.
15. The revisions have no merit, and the same are,
hereby, dismissed.
16. Pending application, if any, also stand disposed of.
(RITU BAHRI, C.J.)
(MANOJ KUMAR TIWARI, J.)
Dated: 22nd April, 2024
NISHANT
