VISHWA AND CO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Two questions of law are submitted for our opinion in this reference, one raises the issue as to which is the proper entry of Schedule B to Bombay Sales Tax Act, 1953 under which fans are liable to be taxed, entry 52 or the residuary entry 80 and the other relates to the validity of the imposition of penalty on the assessee under S. 16(4) of the Act. In order to appreciate the contentions bearing on these questions, it is necessary to state briefly a few facts giving rise to the reference.

(2.) At all material times the assesse was a registered dealer under the provisions of the Act and carried on business as a dealer in electric fans and sewing machines. In other course of the assessment of the assessee to sales tax for the assessment period 1st April 1957 to 31st march 1958, the question arose whether the sales of electric fans made by the assessee were taxable under Entry 52 of Sch. B or under Entry 80 of Schedule B. The revenue claimed that electric fans were domestic electrical appliances within the meaning of Entry 52 of Schedule B and the sales of electric fans were, therefore taxable under that entry whereas the assessee contended that electric fans were not electrical appliances and that, in any event, even if they were electrical appliances, they were not domestic electrical appliances since their essential or primary use was not for homes or houses but they were meant for use also in offices and commercial and industrial establishments and they were, therefore, not covered by Entry 52 of Schedule B and since there was no other specific entry covering them, they fell within the residuary entry 80 of Schedule B. The contention of the assessee was rejected and the claim of the revenue to tax the sales under Entry 52 of Schedule B was upheld by all the appellate and revisional authorities and the tribunal also took the same view. The Tribunal held that in the context in which the words "domestic electrical appliances" occurred in Entry 52 of Schedule B and on a consideration of corresponding entries in the previous sales tax statues, it was clear that these words had an enlarged meaning which included electric fans and electric fans were, therefore, covered by Entry 52 of Schedule B. This decision of the Tribunal is now challenged before us on the present reference under question No.1. So far as question No.2 is concerned, the facts are very simple. The assesse was admittedly liable to submit quarterly returns under R.4 of the Bombay Sales Tax (Procedure) Rules, 1954, and the assesee accordingly submitted a return for the quarter ending 30th June 1957 on or about 6th August 1957. The tax due according to the return was Rs.33,221.09 Np and under S.16(20 and rule 10 it was required to be paid into Government Treasury before furnishing the return. But the assessee paid only Rs.10,000 before submitting the return and the balance was paid later on or about 8th may 1958 after the return was submitted. The Sales Tax officer, therefore, held that the assessee had rendered itself liable to penalty under S.!6 (4) and be accordingly claimed to recover penalty from the assessee. The assessee challenged the claim of the Sales Tax Officer and the contention of the assessee was that on a proper construction of the provisions enacted in S.16, no liability to payment of penalty was incurred under subsection (4) by reason of nonpayment of the amount of the tax before the filling of the return and that such liability could arise only if the asseseee failed to pay the amount of the tax within the time limited under the notice issued under sub-section (5) an since no such notice was issued to the assessee, the assessee was not liable to pay any penalty. This contention was, however rejected by all the appellate and revisional authorities including the tribunal an the imposition of the penalty was held valid. Question No.2 challenges the correctness of the decision of the tribunal on this point.

(3.) The first question arises the point as to which is the proper entry under which electric fans fall: Entry 52 of schedule B or the residuary Entry 80 of Schedule B. Entry 52 of Schedule B relates to "Domestic Electrical Appliances other than torches, torch cells and filament lighting bulbs" and, therefore, unless electric fans can be called domestic electrical appliances, they would not fall within that entry and if they are not covered by that entry, they would, in the absence of any other specific entry covering them, fall within the residuary Entry 80 of Schedule B. The narrow question which, therefore, arises for consideration is whether electric fans are domestic electrical appliances within the meaning of Entry 52 of Schedule B. Mr. S.L. Modi learned advocate appearing on behalf of the assessee, contended that electric fans are not domestic electrical appliances and the reasons which he gave in support of this contention were two. The first was that they are not