CENTRAL AUTOMOBILES Vs. COMMISSIONER OF SALES TAX.

JUDGEMENT

(1.) THIS is an application under section 44(2) of the M.P. General Sales Tax Act, 1958 by the assessee for calling the reference from the Sales Tax Tribunal.

(2.) THE brief facts which are necessary for disposal of this application are that the applicant is a registered dealer under M.P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act") and is carrying on the business of sale of automobiles and their parts. The assessment period is from July 1, 1979 to March 31, 1980. The applicant was assessed by the Regional Assistant Commissioner of Sales Tax, Raipur who had imposed a penalty of Rs. 3 lakhs under section 43(1) of the Act. He had also made the best judgment assessment on the basis of the information directly sought from M/s. Mahendra and Mahendra which increased the turnover to Rs. 1,45,70,000. On that basis, the penalty of Rs. 3 lakhs under section 43(1) was imposed. It is submitted that the applicant submitted revised return. The taxable turnover according to revised return was Rs. 1,03,33,000 which has been enhanced to Rs. 1,16,18,000. Thus, the enhancement in the turnover is about Rs. 7,82,000. It was contended before the Tribunal that when the assessee accepted the turnover supplied by the Mahendra and Mahendra the penalty should not have been imposed. It is submitted that the managing director came to India after the death of his father, and he was not responsible for the acts of omission and commission of late M. Balbhadrarao. It is submitted that it is an admitted fact that M. Balbhadrarao died in October, 1982 and the present managing partner was out of India in connection with his studies. It has been recorded by the first appellate authority that if the information has not been sought from Mahendra and Mahendra assessee would have got away without any penalty or tax. It is submitted that the party has deliberately filed a wrong return. Even then, a lenient view has been taken and a token penalty under section 43 of the Act was imposed. The Tribunal did not feel inclined to interfere with this penalty and observed that the penalty imposed in this case, does not seem to be excessive as it is only about 60 per cent of the payment whereas the maximum penalty could have been levied up to 150 per cent of the tax paid. Therefore, the Tribunal declined to interfere in the penalty. The assessee therefore, moved the Tribunal for referring the matter to this Court. This application was also rejected by the Tribunal by the order dated January 8, 1987. Hence, the assessee has approached for calling a reference under section 44(2) of the M.P. General Sales Tax Act. The assessee has framed following questions of law :