IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Trade Tax Revision No. 22 of 2008 Commissioner Commercial Tax …Revisionist Versus M/s Agraj Enterprises …Respondent Dated: 13.11.2009 Hon’ble Tarun Agarwala, ACJ. Hon’ble V.K. Bist, J. Heard Sri Sudhir Kumar, the learned brief holder for the State revisionist. No one appears for the assessee/respondent. The assessee was required to deposit the tax on the sales made by him for the month of December 2005 on or before 31 January 2006. Since the assessee did not deposit the admitted tax, the Assessing Authority issued a notice dated 8th February 2006 requiring the assessee to deposit the tax. It transpires that the Advocate of the assessee appeared before the Assessing Authority and prayed for time to file a reply and to deposit the tax, if any, intimating that the assessee had gone out of station. The Assessing Authority allowed the application and granted time and, based on the time being granted, the assessee deposited the tax on 04.02.2006, 16.02.2006, 22.02.2006 and on 27.02.2006 also deposited the interest accrued on belated deposit of the tax. Inspite of these deposits, penalty proceedings was initiated against the assessee under Section 58(1)(vii)(a) of the Value Added Tax Act. The Assessing Authority after considering the matter imposed a penalty of 50% of the admitted tax, against which, the assessee preferred an appeal, which was partly allowed and, the penalty of 50% was reduced to 10%. The assessee as well as the department, being aggrieved by the order of the First Appellate Authority, preferred an appeal before the Tribunal. The Tribunal by its order- dated 15.05.2007 rejected the appeal of the department and allowed the appeal of the assessee and quashed the entire penalty imposed by the Assessing Authority. The State being aggrieved by the order of the Tribunal has filed the present revision under Section 55(1) of the Uttarakhand Value Added Tax Act, 2005. 2 Having heard Sri Sudhir Kumar, the learned brief holder for the State and having perused the orders of the Tribunal as well as of the Assessing Authority and the Appellate Authority, the Court finds that the assessee was depositing the tax for the previous months before the due date and for the month of December 2005, the amount of admitted tax could not be deposited on or before 31.01.2006 on account of the fact that the assessee had gone out of station and was not in a position to deposit the amount. It has also come on record that the application of the assessee for the extension of time was allowed and based on that the assessee deposited the amount alongwith the interest. In view of the aforesaid, the Tribunal was justified in holding that there was no deliberate or willful default on the part of the assessee in not depositing the admitted tax within the due date. It is settled law that the penalty can be imposed when it is found that the assessee is deliberately and willfully making a default in payment of the admitted tax. In the present case, there is no finding of the authorities that the assessee was willfully avoiding to pay the tax within the stipulated period. In the absence of ‘mens rea’, the Tribunal was justified in setting aside the order of penalty. This Court is not inclined to interfere in the impugned order. The revision fails and is dismissed. (V.K. Bist, J.) (Tarun Agarwala, ACJ.) 13.11.2009 VKG