STATE OF GUJARAT Vs. MUKHI STORES

JUDGEMENT

(1.) THE Tribunal has referred the following question to us : 'Whether on the facts and in the circumstances of the case penalty under Sub -section (4) of section 16 of the Bombay Sales Tax Act, 1953, could be imposed on the opponent for the period for which the payment of dues was excused by the appellate and revisional authority by grant of stay order ?'

(2.) THE short facts which have given rise to this application are : - The opponent, Messrs Mukhi Stores, Ahmedabad, is a firm registered under the Bombay Sales Tax Act, 1955, hereinafter referred to as 'the Act' The Sales Tax Officer had assessed the opponent -firm for the period from 1st April, 1954, to 31st March, 1955, by the assessment order dated 30th March, 1957. In appeal the Assistant Commissioner of Sales Tax held that the amount of Rs. 17,618 -14 -0 along with penalty - under section 16(4) should be recovered from the opponent -firm after adjusting the payments made by the opponent -firm according to the provisions of law. When the assessee approached the Deputy Commissioner of Sales Tax in revision, by the order dated 22nd September, 1963, the revision was only partially allowed and the Sales Tax Officer was directed to recover the balance due calculating the penalty at 1 per cent for late payment. When the opponent -firm finally approached the Tribunal in revision, the Tribunal has set aside the order imposing penalty after the date of the assessment order till the communication of the judgment of the Tribunal and has confirmed the rest of the order passed by the Deputy Commissioner, on the ground that during the period the appellate and the revisional authorities granted the stay orders against the recovery of the balance of tax, the assessee committed no default for which it could be penalised. The State has, therefore, required the Tribunal to make the aforesaid reference to this Court.

(3.) SUB -clanse (5) provides as under : '(i) the amount of tax - (a) due where the returns are finished without full payment thereof, or (b) assessed for any period under section 14 or under section 15 less the sum, if already paid by the dealer in respect of such period, or (ii) the amount of the penalty payable under sub -section (4), shall be paid by the dealer into a Government treasury by such date as may be specified in a notice issued by the Collector for this purpose and the date to be so specified shall be not less than thirty days from the date of service of such notice : Provided that the Collector may, in respect of any particular dealer and for reasons to be recorded in writing, extend the date of such payment or allow such dealer to pay the tax due and the penalty, if any, by instalments.'