MOHANLAL BRIJLAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE period of assessment in this case is from 1st April, 1949, to 31st October, 1952. THE applicants sell milk, curds, sweets etc. THE Sales Tax Officer assessed the tax to Rs. 13,433-12-0 and levied a penalty of Rs. 1,301-3-6 under sub-section (3A) of section 12 of the Bombay Sales Tax Act, 1946. THE applicants appealed on the question of the penalty levied under sub-section (3A) of section 12, and they did not dispute the assessment. THE Assistant Collector dismissed the appeal observing, "It must be observed that the penalty under section 12(3A) is leviable on the tax payable under the Act which need not necessarily be the tax payable according to the dealer's returns. This has happened in the case of the present appellant". THEre was a revision application against the order of the Assistant Collector. THE applicants contended that they could be asked to pay the difference in the amount of tax payable and paid and that they could not be asked to pay any penalty thereon particularly as there was no deliberate withholding of the tax payable by them. As the applicants did not dispute the assessment, the Additional Collector of Sales Tax who heard the revision application regarded such admission as an indirect admission that the returns which had been filed by them had no basis and that they had been only arbitrarily filed; and he observed, "If the applicant had taken some care to estimate his liability on some reasonable basis, such a state of affairs would not have arisen. In addition I should like to mention that the applicant had not submitted any return for the period from 1st April, 1952, to 30th October, 1952. I am of the opinion that the applicant has tried to submit the quarterly returns just for the sake of submitting them by claiming the deductions in a very arbitrary manner". On this ground he rejected the revision application.

(2.) SUB-section (3A) of section 12 of the Bombay Sales Tax Act, 1946, which was inserted by the Bombay Act I of 1949 and came into operation with effect from 1st April, 1949, is in these terms : "If the tax payable under this Act is not paid by any dealer within the prescribed time, the dealer shall pay, by way of penalty in addition to the amount of tax a sum not exceeding three-fourth per cent of the amount of tax for every month after the expiry of the prescribed period during which he continues to make default in the payment of the tax. The penalty so levied shall be without prejudice to any prosecution instituted for an offence under this Act". The period under assessment comprises 14 quarters in respect of which the applicants made payments in time except for one quarter ending on 30th June, 1951, the delay in that case having been of about 4 months. The penalty has been charged on the difference between the applicants' total liability as found, and what was paid, such difference amounting to Rs. 7,844-11-3. On this amount a penalty of three-fourths per cent per month has been charged on the differences found due for the different quarters making up the above mentioned total.