HINDUSTAN APPAREL INDUSTRIES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this reference under section 61 (1) of the Bombay Sales Tax Act, 1959, read with section 9 (2) of the Central Sales Tax Act, 1956, the Maharashtra Sales Tax Tribunal ("the Tribunal") has referred the following questions of law to this Court for opinion at the instance of the assessee :

(2.) THE assessee, who is a registered dealer under the Central Sales Tax Act, 1956 ("the Central act"), was assessed by the Sales Tax Officer, Thane, under section 9 (2) of the Central Act read with section 33 (3) of the Bombay Sales Tax Act, 1959 ("the Bombay Act" or "the Act") for the period January 1, 1969 to December 31, 1969, vide his assessment order dated July 30, 1977. In the above order of assessment, it was observed :

(3.) THEREAFTER, the Sales Tax Officer issued a show cause notice to the assessee proposing to levy penalty for the very same cause and after hearing the assessee, by his order dated November 19, 1985, levied a penalty of Rs. 1,15,262 under section 9 (2) of the Central Act read with section 36 (3) of the Bombay Act. The assessee challenged the above order of the Sales Tax Officer before the Assistant Commissioner of Sales Tax (Appeals ). The challenge was on two counts : first, the power of the Sales Tax Officer to initiate penalty proceedings afresh and to reimpose penalty, after the order imposing the penalty had been set aside by the Tribunal; second, the quantum of penalty. The Assistant Commissioner did not accept the contention of the assessee that once the order of penalty is set aside by the appellate authority, the Sales Tax Officer cannot pass a fresh order and reimpose the same. He, however, reduced the quantum of penalty from Rs. 1,15,262 to Rs. 87,000. The assessee went in second appeal to the Tribunal. The Tribunal confirmed the order of the Assistant Commissioner in regard to the power of the Sales Tax officer to impose the penalty but further reduced the quantum of penalty to Rs. 57,000. The assessee being not satisfied by the finding of the Tribunal in regard to the power of the Sales Tax officer to pass a fresh order to reimpose the penalty after its order had been set aside by the tribunal, applied to the Tribunal under section 61 (1) of the Bombay Act to refer the question of law arising out of its above order to this Court. Hence this reference by the Tribunal at the instance of the assessee.