- (1.) BY this petition, the petitioner has assailed the orders dated 23.02.2007; and 23.11.2006 for initiating penalty proceedings under Section 4-B(5) of the Trade Tax Act, 1948 (hereinafter mentioned as "Act") for the assessment year 1997-98. The brief facts of the case are that the petitioner - assessee is a public limited company carrying on the business of manufacturing and sale of Bidi. It has the manufacturing unit at Bihar and West Bengal. The assessee purchased Tendu Leaves in U.P. against Form III-B and paid the concessional tax @2.5% and sent the same to its manufacturing units located outside the State. Later, the Bidi was imported in U.P. for sale. The A.O. opined that the Tendu Leave was not utilized in U.P., which was purchased in U.P. by paying concessional rate of tax. At the relevant time, normal rate of tax was 15% but the concessional rate as per scheme of the Government, 2.5% tax was paid. For the loss of tax, the A.O. has issued a notice, to which on 20.03.2001 reply was sent by the assessee. Prior to it, on 04.02.2000, the assessee suo moto deposited the difference of tax i.e. 15-2.5 = 12.5% , which comes to Rs.1,09,88,551/-.
(2.) FINALLY , the A.O. has rejected the explanation of the assessee vide order dated 10.04.2001 but adjusted the amount, which was deposited by the petitioner - assessee voluntarily, and created a demand of Rs.52,45,357/- mainly pertaining to interest. Being aggrieved, on 15.12.2001, the assessee- petitioner has filed an appeal before the appellate authority, who has remanded the matter back to the A.O. for fresh adjudication under section 3-B. Not being satisfied, the department has approached the Tribunal, who vide its order dated 28.07.2003 has confirmed the order passed by the First Appellate Authority. So, in pursuance to the order passed by the appellate authority, the A.O. again passed an order on 12.12.2003, under section 3-B of the Act and crated balance liability after making adjustment. The same was upheld by the First Appellate Authority as well as by the Tribunal. The Hon'ble High Court also dismissed the Trade Tax Revision No.177 of 2006 vide order dated 29.08.2011. However, on 04.01.2013, the Hon'ble Apex Court in S.L.P. No.35805 of 2011 (Civil) granted leave and matter is still pending for adjudication.
(3.) IN the meantime, the A.O. initiated the penalty proceedings under section 4-B(5) of the Act. Being aggrieved the petitioner has filed the present writ petition. With this background, Sri Rakesh Ranjan, and Sri S. M. K. Chaudhary, learned senior counsel assisted by Sri Rahul Srivastava, learned counsel for the petitioner submits that the proceedings in quantum; and penalty are different. The matter of quantum is pending before the Hon'ble Supreme Court but in the meantime, the department has initiated penalty proceedings by issuing impugned notice/orders.;