CASE LAWS DETAILS
DECIDED BY: HIGH COURT OF BOMBAY,
IN THE CASE OF: Malaysian Airlines Vs. UOI, APPEAL NO: W. P. NO. 17 OF 2004, DECIDED ON August 9, 2010
The concept of failure to pay can be quoted with non-payment. Non-payment is nothing but failure to pay when due. As per the provisions of the Act, amount of FTT collected becomes due within fifteen days from the date of collection thereof. Failure to pay within this prescribed time frame would mean non-payment or failure to pay. If any person fails to pay within the statutory period of fifteen days, then such person is well within the sweep of the words “failure to pay”. Once the period of fifteen days is over and breach in payment of tax is committed, then it is immaterial when the defaulter in future is making the payment. Had there been no minimum penalty prescribed under sub-section (3) of section 38 of the Act, it would have been open for the adjudicating authority to consider the conduct of the defaulter and the extent of delay taking into account the extenuating circumstances while imposing penalty. But once the statute prescribes the minimum penalty without giving any discretion in favor of the adjudicating authority, then one has to go by the provisions of the Act.