VidhiSangh

Supreme Court of India · 17/04/2023

STATE OF GUJARAT AND ANR. versus M/S. SAW PIPES LTD.

[2023] 6 S.C.R. 479 · 2023 INSC 376

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Summary

A works contractor coating pipes paid lump-sum tax at 2% under the Gujarat Sales Tax Act, 1969 treating its contract as a civil works contract; the assessing officer applied the residuary entry, raised a demand and levied penalty under Section 45(6) and interest under Section 47(4A), which the Tribunal confirmed. The assessee conceded the tax before the High Court, which nonetheless deleted the penalty and interest because the tax had been paid and the assessee had acted on a bona fide belief and expert advice. The Supreme Court restored the levy: once the tax assessed exceeds the tax paid by more than 25% the dealer is deemed to have failed to pay under Section 45(5), and the words 'there shall be levied' in Section 45(6) make the penalty statutory, automatic and mandatory, leaving no discretion and no room for mens rea; the same applies to interest under Section 47(4A).

Issues

  1. Whether penalty under Section 45(6) and interest under Section 47(4A) of the Gujarat Sales Tax Act, 1969 are mandatory and automatic once the conditions in Section 45(5) are met, or whether the assessee's bona fide belief and absence of mens rea must be considered.
  2. Whether the assessee could reopen the quantum of tax, conceded before the High Court through senior counsel, in the State's appeal against deletion of penalty.

Provisions considered

Held

Result

Appeal allowed; High Court judgment dated 04.08.2016 deleting penalty and interest quashed and set aside; orders of the Assessing Officer, confirmed up to the Tribunal, levying penalty under Section 45(6) and interest under Section 47(4A) of the Gujarat Sales Tax Act, 1969 restored; no order as to costs.

Judgment PDF: Supreme Court of India, [2023] 6 S.C.R. 479.