High Court Of Karnataka
Javeed Asgar vs. Assistant Commissioner Of Agricultural Income Tax
Section KAR Agrl. 42
Asst. Year 2000-2001
D.V. Shylendra Kumar, J.
Writ Petn. No. 38986 of 2002
16th February, 2004
Counsel Appeared :
S. Parthasarathi, for the Petitioner : Ms. Niloufer Akbar, for the Respondent
JUDGMENT
D.V. Shylendra Kumar, J. :
The petitioner is an assessee under the provisions of the Karnataka Agrl. IT Act, 1957. For the asst. yr. 2000-01, the assessee had opted for payment of tax by composition in respect of his agricultural land as provided under s. 66 of the Act and paid a sum of Rs. 21,088 initially by way of advance payment and Rs. 33,706 by way of cheque on 20th Aug., 2002, on the premise that the extent of his holding was 49 acres 23 guntas. It is not in dispute that the assessee grows coffee in his land. For the subsequent year, i.e., for the year 2000-01, while filing Form No. 23 the petitioner had indicated that his extent of holding is not 49 acres 23 guntas but a lesser extent and accordingly, paid Rs. 33,706 on 20th Aug, 2002.
2. The Asstt. Commr. of Agrl. IT by notice dt. 8th Aug., 2002, purporting to be under s. 66 r/w s. 32(3) of the Act called upon the assessee to indicate as to why he should not be called upon to pay penal interest as per s. 42(1) of the Act as the entire amount payable on opting for composition had not been paid within the permitted time, a sum of Rs. 33,706 was still payable by the assessee and for such purpose called upon the assessee to furnish particulars of payments made by him.
3. The assessee filed his reply as per his letter at Annex. C, whereunder he pointed out that he had enclosed a cheque for Rs. 33,706 for the demand made but there is no justification for levying penalty under s. 42 of the Act as he has already paid the amount demanded. However the first respondent by his order dt. 21st Aug., 2002, (copy at Annex. E) levied penalty of a sum of Rs. 19,845 for the belated payment of Rs. 33,706.
4. The controversy that is sought to be agitated in this writ petition is as to the justification on the part of the respondent in calling upon the assessee to pay penalty on Rs. 33,706 which had been paid on 20th Aug., 2002, by invoking the provisions of s. 42 of the Act.
5. Sri Parthasarathi, learned counsel for the petitioner submits that the respondent had no authority or jurisdiction to levy penalty under s. 42 of the Act in respect of a sum of Rs. 33,706 which was paid on 20th Aug., 2002, which was actually payable by the assessee for the year 200001. The submission of learned counsel for the petitioner is that s. 42 is a provision for recovery of the arrears of tax when the assessee becomes a defaulter in payment of tax or any other amount due under the Act, such a person is made liable to pay penalty under sub-cl. (a) to s. 42(1)(ii) of the Act and in the present case as the provisions of s. 41(1) or s. 41(2) had not been followed or attracted there is no occasion for the respondent to levy penalty envisaged under s. 42 is the submission. Learned counsel also submits that there is no other enabling provision under the Act to levy such a penalty on the amount of Rs. 33,706 and as such when no provision has been made under the Act itself for levy of penalty or interest on such amount, the respondent cannot call upon the petitioner to pay this amount.
Learned counsel submits that the amount being in the nature of penalty as mentioned in the provisions, it is not open to the respondent to levy such amount without due authority of law, de hors the provisions of the Act and, therefore, submits that the demand for payment of this penalty amount as per Annex. E is liable to be quashed.
The statement of objections has been filed on behalf of the respondent. It is, inter alia, asserted that there was delay on the part of the petitioner in making payment of the amount due under s. 66(5) r/w r. 32(2) and within the stipulated time as per s. 18(1) of the Act that the assessee having paid the difference amount in respect of his actual liability and opted for composition only on 20th Aug., 2002, i.e., almost after two years, the assessee was liable to pay the penalty as contemplated under s. 42 of the Act and, therefore, there was every justification to levy and demand the penalty amount and the same cannot be quashed.
Learned Government pleader has also pointed out that the petitioner in fact having opted for composition by accepting the holding to be 48 acres 33 guntas for the year 1999-2000 and had on such premise paid the amount of Rs. 21,088 on 31st July, 2000, and that such determination holds good for the subsequent two years also unless by a proper procedure and order it has been redetermined. It is submitted that as, in the instant case, the petitioner has ultimately accepted and admitted his liability for the payment of this amount of Rs. 54,794 and having without any demur paid the difference amount of Rs. 33,706 on 20th Aug., 2002, it was inevitable for the respondent to call upon the assessee to make payment of penalty under s. 42 of the Act, for the period between 31st July, 2000 and 20th Aug., 2002, on the differential amount of Rs. 33,706.
After hearing learned counsel for the petitioner and the learned Government pleader and after perusing the respective pleadings and the provisions of the Act, I am of the view that there is every justification on the part of the respondent in invoking the provisions of s. 42 of the Act and calling upon the petitioner to pay the penalty/interest envisaged under this provision.
10. Though Sri Parathasarathi, learned counsel for the petitioner, has contended that when once a situation contemplated under s. 42(1)(ii)(a) has not occurred there is no justification to levy any penalty under s. 42 particularly as there was neither an order followed by a demand, only in which event the period between the last date provided for payment under the demand notice and the actual date of payment can be the period for which penalty can be raised.
11. I am of the view that it is not necessary in the present case particularly as it is a case of the assessee who had opted for s. 66 and not a case of an assessee having filed a return under s. 18 of the Act, in respect of which return the AO should have passed an assessment order under s. 19 of the Act.
12. The assessee had opted for composition even in respect of the earlier years and the amount of tax payable on composition had already been determined. By a reading of the provisions of s. 66 r/w r. 32(2) and Form No. 23 with provisions of s. 18(1), it becomes obvious that the assessee is required to pay the composition amount by or before 31st July of the year in respect of which he had opted for composition. In the present case, the assessee was required to make payment of Rs. 54,792 by or before 31st July, 2000. On the other hand, the assessee actually paid a sum of Rs. 21,088 only on 31st July, 2000, and has paid the balance of Rs. 33,706 on 10th Aug., 2002. To this extent there is definitely non-compliance. A reading of the provision of s. 66 shows that it automatically implies that the assessee was a defaulter during this period as understood in s. 42 of the Act and the defaulting period was on and after 31st July, 2000 and upto 10th Aug., 2002, when the assessee made payment of the deficit. In a case where the assessee opts for payment of tax by way of composition, the period envisaged under sub-cl. (a) of cl. (ii) of sub-s. (1) of s. 42 gets automatically determined by the statutory operation, to be the period between 31st July of the year and the date of payment of the amount sought to be paid by way of composition. This is so because there being no assessment order, there is no occasion for issue of the demand notice indicating the upper limit for payment of tax based on the assessment order beyond which period the assessee becomes a defaulter. In a case where the assessee opts for composition, such assessee becomes a defaulter if the amount of composition is not paid by or before 31st July. There is no dispute that the petitioner had not paid the admitted amount that is determined and payable by the assessee by way of composition by or before 31st July. There cannot be any escape from the conclusion that the assessee was a defaulter in the present case within the meaning of s. 42 of the Act. If the assessee is a defaulter, the requirement of s. 42(1)(ii) automatically gets attracted by the operation of statutory provisions themselves.
13. The amount demanded to be payable by the petitioner, though is called a penalty, if one looks at the scheme of the provisions of s. 42 of the Act, it is obvious that the amount is in the nature of a compensatory payment to compensate the Revenue for the loss due to the delayed remittance of a tax liability quantified and indicated to be payable within a permitted time. The amount so payable is also statutorily determined and is not left to the discretion of the authority demanding payment. Therefore, I am of the view that the provisions of s. 42 are attracted and there is nothing wrong on the part of the respondent in demanding the assessee to make payment of penalty/interest under this provision and in raising the demand as per Annex. E. The contentions urged on behalf of the petitioner are accordingly rejected. The writ petition fails and is accordingly dismissed.
14. Learned Government pleader is permitted to file her memo of appearance within four weeks.
[Citation : 270 ITR 104]
