COMMISSIONER OF SALES TAX Vs. VIMALCHAND PRAKASH CHAND

JUDGEMENT

(1.) BY this reference under Section 44 (1) of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter referred to as "the Act"), the Board of Revenue has referred the following question of law to this Court for its opinion :

(2.) THE material facts giving rise to this reference, briefly, are as follows :

(3.) HAVING heard learned counsel for the parties, we have come to the conclusion that this reference must be answered in the affirmative and against the Department. In [1983] 54 STC 332 ; [1983] VKN 275 (Food Corporation of India v. Commissioner of Sales Tax, Madhya Pradesh), it has been held by this Court that while exercising powers under Section 38 (5) of the Act, the appellate authority has no jurisdiction to impose penalty for the first time. In view of this decision, the Board was justified in holding that the penalty under Section 17 (3) of the Act could not have been imposed on the assessee for the first time at the appellate stage. Learned counsel for the Department contended that in view of the decision of this Court reported in [1987] 66 STC 164 (Babulal Agarwal v. Commissioner of Sales Tax, M. P.), the Deputy Commissioner was not right in holding that penalty under Section 43 (1) of the Act could not have been imposed. The Department, however, did not choose to agitate that question before the Board and hence, that aspect of the matter cannot be considered at this stage.