JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal") in Second Appeal No. 518 of 2012 insofar as deleting the interest and penalty of Rs. 28,160 and Rs. 1,56,404, respectively, the Revenue has preferred the present tax appeal. At the outset it is required to be noted that while admitting the present tax appeal, the Division Bench of this court had framed the following substantial questions of law: "(1) Whether, on the facts and in the circumstances of this case, the Gujarat Value Added Tax Tribunal was justified in holding that the opponent-assessee is entitled to adjustment of input-tax credit towards the output tax liability for the assessment year in question? (2) Whether, on the facts and in the circumstances of this case, the Gujarat Value Added Tax Tribunal was right in law in deleting the interest and penalty of Rs. 28,160 and Rs. 1,56,404, respectively?" 2. The learned advocates appearing on behalf of respective parties have jointly submitted that question No. 1 framed while admitting the present tax appeal does not arise in the present tax appeal and as such through oversight and/or by mistake the said question of law has been framed. Under the circumstances, aforesaid question No. 1 framed while admitting the present tax appeal is not answered as no such question arises in the present tax appeal. 3. Now, so far as the substantial question No. 2, i.e., whether on the facts and in the circumstances of the case, the Gujarat Value Added Tax Tribunal, Ahmedabad, was right in law in deleting the interest and penalty of Rs. 28,160 and Rs. 1,56,404, respectively is concerned, it is fairly conceded by Shri Chintan Dave, learned Additional Government Pleader appearing on behalf of the appellant, that now the aforesaid question/issue is squarely covered against the Revenue in view of the decision of the Division Bench of this court dated January 19, 2015 in the case of State of Gujarat v. Dash-mesh Hydraulic Machinery [2015] 80 VST 532 (Guj) rendered in Tax. 3.1 In the case of Dashmesh Hydraulic Machinery [2015] 80 VST 532 (Guj), in paras 6, 7 and 8, the Division Bench has observed and held as under (pages 533 and 534 in 80 VST): "6. 3.1 In the case of Dashmesh Hydraulic Machinery [2015] 80 VST 532 (Guj), in paras 6, 7 and 8, the Division Bench has observed and held as under (pages 533 and 534 in 80 VST): "6. We may record that this court in the above referred Tax Appeal No. 1284 of 2014 vide its decision dated November 25, 2014 (State of Gujarat v. Jay Steel and Tubes Traders [2015] 80 VST 530 (Guj)) had observed thus: '1. State is in appeal against the judgment of the Gujarat Value Added Tax Tribunal ("the Tribunal", for short) proposing following questions for our consideration: "(1) Whether Tribunal erred in deleting levy of interest and penalty merely because assessee had excess input credit adjustable against tax demand? (2) Any other substantial questions of law as may be deemed fit by the honourable High Court may kindly be framed?" 2. From the record, it emerges that the Revenue contests the deletion of interest and penalty by the Tribunal in case of the respondent-assessee. The Tribunal in the impugned judgment also held as under: "The appellant has paid the amount of tax fully therefore, we are not disturbing the amount of carried forward ITC. The appellant is entitled to claim the said ITC for next tax period. As stated above, the appellant is not liable to pay interest on tax demand as the ITC was first required to adjust against the current year liability as per the provision of rule 18 of the Rules. The appellant had sufficient balance of ITC to adjust against the additional tax liability, which arises due to disallowance of ITC. We therefore, remove entire interest and penalty. We pass the following order." 3. From the observation of the Tribunal, it appears that though the assessing officer had raised additional tax demand of Rs. 76,010 and imposed interest and penalty on such basis, the Tribunal was of the opinion that the assessee had sufficient input-tax credit and those tax credits could have been adjusted against the assessee's additional assessed tax liability. That being the position, the Tribunal correctly held that the interest could not be charged. Further, we notice section 34(7) of the Gujarat Value Added Tax Act, which pertains to the power of the Commissioner to impose penalty, begins with the expression "if a Commissioner is satisfied that the dealer, in order to evade or avoid payment of tax". That being the position, the Tribunal correctly held that the interest could not be charged. Further, we notice section 34(7) of the Gujarat Value Added Tax Act, which pertains to the power of the Commissioner to impose penalty, begins with the expression "if a Commissioner is satisfied that the dealer, in order to evade or avoid payment of tax". Under the circumstances, the basic intention of attempting to evade or avoid payment of taxes would be necessary for imposing penalty. 4. When the Tribunal found on facts that in view of availability of input-tax credit as against the assessed additional tax, there was no intention on part of the assessee to avoid payment of taxes, no question of law arises. Tax appeal is dismissed. Civil application also dismissed.' 7. Same situation arises in the present matter inasmuch as the demand is confirmed and the adjustment is permitted but the interest and penalty imposed are deleted. 8. It is not in dispute that the assessee had no surplus balance of input credit, which has been adjusted against the demand of tax upon reassessment. Under these circumstances, the element of avoidance of tax could be said as lacking. Consequently, the deletion of interest and penalty on the part of the Tribunal could not be said as unjustifiable. ..." Under the circumstances, question No. 2 is answered against the Revenue and in favour of the assessee. Consequently, the present tax appeal deserves to be dismissed and is, accordingly, dismissed.