STATE OF GUJARAT Vs. SAKURBHAI ABEDBHAI

JUDGEMENT

(1.) THE question involved in this reference is whether while considering the applicability of the test of the tax assessment exceeding more than 20 per cent of the tax already paid, as provided by sub-section (3a) of section 36 of the Bombay Sales Tax Act, 1959 (which is hereinafter referred to as the "act"), the amount of tax paid by the assessee, after filing his return but before the final tax assessment was made, should be taken into consideration or not.

(2.) THIS question arises in the background of the following facts : The respondent-assessee is a partnership-firm doing the business of reselling timber, stone, etc. , at Vadnagar. It is duly registered as a dealer under the Act. During the course of S. Y. 2025 the respondent-assessee filed quarterly returns under the Act showing the total taxable turnover of sales at Rs. 78,385 for the levy of sales tax and of Rs. 9,510 for the levy of general sales tax. It is an admitted position that along with the four returns filed by the respondent-assessee, it paid tax in accordance with these returns. The total amount of tax thus paid by it comes to Rs. 4,295. 94. The last payment was made along with the last return on 12th December, 1969.

(3.) BEING aggrieved by this decision, the respondent-assessee approached the Assistant Commissioner for Sales Tax in appeal, but failed. He, therefore, approached the Appellate Tribunal, where he succeeded. The Tribunal on a construction of sub-section (3a) of section 36 came to the conclusion that since the assessee had paid the tax amount of Rs. 1,500 prior to the assessment, the requirements of sub-section (3a) of section 36 of the Act were fully complied with. BEING aggrieved by this decision of the Tribunal, the State the preferred this reference in which the Tribunal has referred the following question for our opinion : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in setting aside the order relating to the imposition of penalty of Rs. 415. 47 on the opponent-firm under section 36 (3a) of the Bombay Sales Tax Act, 1959, by the sales tax authorities ?"