PRIYADARSHINI CEMENT LIMITED Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE assessing authority by his separate orders levied penalty on the appellant for delayed payment of tax for the months of May, 2002 to October, 2002. Aggrieved by the said orders, the appellant preferred appeals before the ADC (CT), Hyderabad Rural Division, Hyderabad, who by his common order allowed the appeals and set -aside the orders of the assessing authority, levying penalty. Then the Additional Commissioner (CT) (Legal), Hyderabad holding that the order of the appellate authority is prejudicial to the interests of revenue, issued a show cause notice of revision to the appellant and having considered the matter, revised the order of the appellate authority by his common order. Hence, these appeals. Since common issue and common question of law have been raised in all these appeals, we consider it just and reasonable to dispose of these same by this common order.

(2.) THE main contention of the learned counsel for the appellant is that the revisional authority can take up the revision only when the order sought to be revised is prejudicial to the interests of revenue and thus, the Revisional Authority can exercise his powers under Section 20 of the APGST Act where the 'tax due' to the Government is not properly levied and he cannot exercise his authority to 'revise the penalty' proceedings. It is further contended that Section 15(4) applies where an assessee fails to pay the tax on the basis of return but not along with the return. It is further submitted that non -payment of tax by the appellant on the due date is neither willful nor deliberate but due to the reasons beyond their control. It is further submitted that there was slow realization on sales and that the industry was facing financial problems and in the above circumstances, there was some delay in payment of tax. It is further submitted that the appellant was regularly paying the tax prior to the said difficult period and after that period. It is also submitted that the Government had appreciated the appellant and also issued a Certificate of Gold Card to them. It is also their contention that where the return has not accompanied by receipt or crossed cheque for admitted tax, then it has to be deemed as incorrect or incomplete return and then the assessing authority may pass best judgment assessment but, before passing best judgment assessment, a notice has to be given to the appellant and in this case since the returns were not accompanied by receipt or crossed cheque, the assessing authority ought to have passed best judgment assessment and in support of their contention, they relied in the case of M/s. Jyothi Chemicals Vs. Commercial Tax Officer, Cuddapah reported in : (1976) 38 STC 52. It is further submitted that the assessing authority ought to have seen the conduct of the appellant prior to and after the period during which some delay occurred. It is further submitted that the authorities have not considered the explanation submitted by the appellant and the reasons explained by the appellant have not been taken into consideration. It is also submitted that the appellant has already paid the interest for delayed payment of tax. His main contention is that when there is absolute failure to pay the tax or when an assessee has failed to pay the tax after passing of an order by the assessing authority, then only the authorities can invoke Section 15(4) and in all other cases, when there is a delay in payment of tax, Section 16(3) has to be applied. It is also submitted that the authorities have not made an enquiry as to whether the appellant has collected tax or not? Unless it is determined as to whether the appellant has collected the tax or not, Section 15(4) cannot be invoked. It is further submitted that if an assessee has collected tax, then he has to pay 30% penalty and in other cases, the assessee has to pay 20% penalty and in the above circumstances, it becomes necessary to ascertain whether the appellant has collected the tax from the purchasers or not?

(3.) THE Learned State Representative in turn supported the impugned orders and inter -alia submitted that Section 15(4) is very clear which envisages that when once an assessee fails to pay the tax along with the return, the assessee is liable to pay penalty and that the authorities have exercised their powers in accordance with law and that payment of interest for the delayed payment of tax will not exempt the appellant from paying the penalty and that payment of interest is automatic.