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Sunny Gold Wineries Pvt. Ltd. v/s State of Maharashtra & Others

    SALES TAX APPEAL NO.2 OF 2012

    Decided On, 13 April 2012

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE J.P. DEVADHAR & THE HONOURABLE MR. JUSTICE M.S. SANKLECHA

    For the Appellant: Rafiq Dada, Sr. Counsel i/by Vinay Sonpal with Ms. Tejal Chavan, Advocates. For the Respondents: S.K. Nair, A Panel Counsel.



Judgment Text

ORAL JUDGMENT: (J.P. DEVADHAR, J.)

1 This appeal was admitted on 16.03.2012 on the following substantial question of law:

'Whether the Maharashtra Sales Tax Tribunal was justified in confirming the interest levied under Section 30(2) / 30(3) of the Maharashtra Valued Added Tax Act, 2002 and penalty levied under Section 29(3) of the Maharashtra Valued Added Tax Act, 2002?'

2 The dispute in the present case relates to the sales of liquor effected by the assessee during the period from 01.4.2005 to 31.1.2006.

3 As the Maharashtra Sales Tax Tribunal by its order dated 11/12/2009 set aside the original assessment order and also the penalty order and directed the first appellate authority to pass fresh order on merits, the Dy. Commissioner of Sales Tax (Appeals) Pune, by his order dated 09.08.2010 determined the tax liability of the appellant-assessee during the relevant period with interest and penalty under Sections 23, 30(2), 30(3) and Section 29(3) of the Maharashtra Value Added Tax Act 2002 (MVAT for short) respectively.

4 Challenging the aforesaid order, the assessee had filed an appeal, which was dismissed by the Tribunal on 17/9/2011. Present appeal is filed by the appellant/assessee to challenge the aforesaid decision of the Tribunal in so far as it confirms the penalty and interest under Sections 29 and 30(2)/30(3) of MVAT. In other words, the tax liability determined under the impugned order dated 09.8.2010 and paid by the assessee has attained finality and the only dispute in this appeal relates to the penalty and interest confirmed by the Tribunal.

5 After the matter was argued for some time, Counsel on both sides agree that in the absence of a clear finding recorded by the first Appellate Authority regarding the nature and the extent of concealment, it would be just and proper to set aside order imposing penalty and interest and restore the matter for de novo consideration. Moreover, perusal of the order dated 09.8.2010 shows that the first Appellate Authority has not answered all the issues framed in para 7 of the said order which according to the first Appellate Authority were the proper issues required to be considered in the appeal.

6 In these circumstances, the order passed by the Dy. Commissioner of Sales Tax (Appeals) dated 09.8.2010 as also the order passed by the Tribunal on 17.9.2011 to the extent of imposing & confirming the penalty and interest are quashed and set aside and the matter is restored to the file of the Dy. Commissioner of Sales Tax (Appeals)-1 Pune, for passing fresh order on merits relating to the imposition of penalty and interest under the provisions of Maharashtra Value Added Tax Act, 2002.

7 The fact that the assessment order dated 09.8.2010 in so far as it relates to the determination of the tax liability has attained finality and the assessee has accepted the tax liability shall not preclude the assessee from contesting the issue relating to the imposition of penalty and interest on all grounds as are permissible in law. Therefore, while keeping all the co

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ntentions of both sides open, we direct the first Appellate Authority to decide the issue relating to the imposition of penalty and interest afresh and in accordance with law as expeditiously as possible, preferably within a period of three months from today. 8 The appeal is disposed of accordingly with no order as to costs.
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