COMMISSIONER OF SALES TAX MAHARASHTRA STATE BOMBAY Vs. COMMISSIONER OF SALES TAX MAHARASHTRA STATE BOMBAY

JUDGEMENT

(1.) THESE references arise from a common judgment of the Sales Tax Tribunal dated 2nd November, 1981, in Second Appeal Nos. 1361 and 1362 of 1980 and Nos. 1717 and 1718 of 1980. Arising from the judgment a number of questions have been referred to us for decision under section 61 (1) of the Bombay Sales Tax Act, 1959. Some of these are at the instance of the department while some are at the instance of the assessee. By consent of all parties the questions have been condensed and reframed as follows. The first question is at the instance of the Commissioner of Sales Tax while the next three questions are at the instance of the assessee. THESE are as follows : (1) Whether, on the facts and in the circumstances of the case, was the Tribunal justified in law in holding that no penalty under section 36 (3) was legally imposable on the respondent-dealer for non-payment of the amount of tax payable as per rule 29 (1a) of the Rules for each of the first two months of the relevant quarters, both under the Bombay Sales Tax Act and the Central Sales Tax Act, as the case may be ? Questions at the instance of the assessee : (1) Whether, on the facts and in the circumstances of the case was the Tribunal justified in law under the Bombay Sales Tax Act or the Central Sales Tax Act, as the case may be, in upholding the levy of penalty under section 36 (3) of the Bombay Sales Tax Act, 1959, for non-payment of part or whole of the tax payable along with the returns without issue of a notice from the department in form No.26, as required under section 38 (4) of the Bombay Sales Tax Act, 1959, read with rule 31 of the Bombay Sales Tax Rules ? (2) In cases where penalty under section 36 (3) of the Bombay Sales Tax Act, 1959, read with section 9 of the Central Sales Tax Act, 1956, is levied for a period prior to 7th September, 1976, the date of promulgation of the central Sales Tax (Amendment) Act, 1976, the circumstances of there being no such provision under the Central Sales Tax Act, 1956, prior to the amendment of 1976, constitute a reasonable cause within the meaning of section 36 (3) in the facts and circumstances of the case ? (3) Whether, the circumstances set out in question No.2 above constitute a ground for remission of penalty in whole or in part under the proviso to section 36 (3) of the Bombay Sales Tax Act, 1959, in the facts and circumstances of the present case ?

(2.) THE assessee, Machinery Sales and Services, is a dealer in textile machinery and scrap. THE assessee is a registered dealer under the Bombay Sales Tax Act, 1959, as also under the Central Sales Tax Act, 1956. THE assessments in question relate to assessment years 1974-75 and 1975-76. In the year previous to the assessment year 1974-75, that is to say, in the year commencing from 1st April, 1973 and ending on 31st March, 1974, the turnover of sales and purchases of the assessee exceeded Rs. 10 lakhs. Under the relevant Bombay Sales TAX Rules the assessee was required to file quarterly returns. THE assessee filed such quarterly returns for the periods in question on the dates which are set out in the statement of the case.

(3.) THE Sales Tax Officer did not issue any notice in form 26 as per the provisions of section 38, sub-section (4) of the Bombay Sales Tax Act, 1959.