BRAJALAL BANIK Vs. STATE OF TRIPURA

JUDGEMENT

(1.) BY this writ petition the petitioner challenges an order passed by the Superintendent of Taxes, Agartala, imposing penalty of Rs. 5,000 under Section 26(2) of the Tripura Sales Tax Act, 1976, for failure to pay penalty of Rs. 5,000 earlier levied by him under Section 10A of the Central Sales Tax Act, 1956.

(2.) THE petitioner, a dealer carrying on business of execution of contract works under the name and style of Auto Engineering Works, Agartala, is registered as a dealer under the Central Sales Tax Act, 1956 (hereinafter referred to as 'the Central Act'), as well as under the Tripura Sales Tax Act, 1976 (hereinafter referred to as 'the Act'). By order dated September 2, 1980, the Superintendent of Taxes, Agartala, imposed a penalty of Rs. 5,000 on the petitioner under Section 10A of the Central Act and directed him to pay the same by September 30, 1980. The petitioner preferred an appeal against the said order which was rejected. The petitioner thereafter preferred further appeal before the Sales Tax Tribunal on April 29, 1981, along with a petition for stay of realisation of the amount of penalty till disposal of the appeal. In the meantime the petitioner received a notice dated March 31, 1981, issued by the Superintendent of Taxes asking him to deposit the amount of penalty of Rs. 5,000 imposed under the Central Act by April 7, 1981, as the appeal against the same had already been rejected by the Assistant Commissioner of Taxes. The petitioner informed him that a further appeal was being preferred before the Sales Tax Tribunal and requested him not to start any penalty proceeding for non -payment of the said amount under Section 26(2) of the Act. The petitioner also prayed for two months' time to enable him to obtain stay order from the appellate authority. In reply, the Superintendent of Taxes, by his letter dated April 8, 1981, informed the petitioner that his decision to prefer an appeal had no bearing on the payment of penalty money and directed the petitioner to deposit the same by April 15, 1981, failing which it was stated in the said notice that action would be taken under Section 26(2) of the Act. The petitioner by letter dated April 15, 1981, explained the entire position of the case and also the reasons for nonpayment of the amount of penalty under the Central Act amounting to Rs. 5,000 and prayed for some time. The Superintendent of Taxes, however, did not grant the time as prayed for by the petitioner and directed him to deposit the penalty money by April 30, 1981. On April 30, 1981, the petitioner again wrote a letter informing him that the appeal had already been filed before the Sales Tax Tribunal and the matter would be heard by the Tribunal within seven days. Accordingly, prayer was made for keeping the proceeding in the matter pending till finalisation of the appeal. The Superintendent of Taxes, however, without considering the aforesaid petition and without issuing any show cause notice levied a penalty of Rs. 5,000 being 100 per cent of the amount due from the petitioner in exercise of the power under Section 26(2) of the Act and issued a notice of demand for payment of the same. It appears that the petition filed by the petitioner on April 30, 1981, for grant of time was not considered before passing the impugned order of penalty on May 2, 1981. This is evident from a letter dated May 4, 1981, issued by the Superintendent of Taxes intimating the petitioner that no action could be taken on the said application dated April 30, 1981, since action had already been taken by him.

(3.) WE have heard Mr. S. Deb, learned counsel for the petitioner and also Mr. M. Majumdar, learned Government Advocate. We have considered the various submissions made by the learned counsel for both the parties. On consideration of the impugned order and the facts and circumstances of the case we are satisfied that the levy of penalty in the instant case is not tenable in law.