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OJCA/459/2009 2/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 459 of 2009
In
TAX
APPEAL No. 2119 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
MICRO
FORGE (INDIA) LTD - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR KH KAJI
for Applicant(s) : 1,MR
MANISH K KAJI for Applicant(s) : 1,
Ms. MD MEHTA, ASST. GOVERNMENT
PLEADER for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/01/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
RULE.
Learned AGP Ms. M.D. Mehta waives service of rule on behalf of the
opponent.
2. The
applicant has filed this application praying for stay against
recovery of the penalty amount retained by the Tribunal.
3. The
applicant has preferred Tax Appeal No. 2119 of 2009. The said Tax
Appeal was admitted by this court on 17.11.2009 and notice was issued
in the present civil application. Thereafter, by an order dated
10.12.2009, this court has passed an order on the basis of the
statement made by the learned AGP that no coercive measures would be
taken for recovery of the penalty amount till the next date of
hearing.
4. Heard
learned Sr. Counsel Mr. K.H. Kaji appearing with Mr. Manish K. Kaji,
learned advocate for the applicant and Ms. M.D. Mehta, learned AGP
appearing for the opponent.
5. The
main contention of learned Sr. Counsel Mr. Kaji is that the penalty
order is passed after 6 years from the date of assessment order and
that too under the dictate of the Dy. Commissioner of Sales Tax.
This is contrary to the settled legal position and the penalty order
itself is not sustainable. He has therefore submitted that till the
appeal is decided by this court, the amount of penalty levied under
sec. 45(6) of the Gujarat Sales Tax Act by the Sales Tax Officer to
the extent of 90% of the tax assessed which was reduced by the
Tribunal to the extent of 50%, which comes to Rs. 3,46,223.50, be
stayed.
6. We
find sufficient force in the submission of Mr. Kaji and hence this
application is allowed staying the recovery of the penalty amount
till the disposal of Tax Appeal No. 2119 of 2009.
7. The
application is accordingly allowed. Rule is made absolute without
any order as to costs.
(K.A.
Puj, J.)
(Rajesh
H. Shukla, J.)
(hn)
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