GAYATRI TRADING CO Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution , the petitioner has challenged the orders dated 18.12.97 passed by the Superintendent of Taxes, Assam, imposing penalty of Rs 12,079/- for the year ending 1994-95 and Rs 14,183/- for the year ending 1995-96 under Section 23(1) (f) of the; Assam General Sales Tax Act, 1993 (for' short, 'the Act').

(2.) The short point raised by Mr O.P. Bhati, learned counsel for the petitioner is that the penalty under the said Section 23(1 )(f) of the Act can be imposed only if a dealer failes to pay without reasonable cause the tax payable by him under subsection (1) of Section 16 or under any notice of demand issued under Section 25 of the Act. In the instant case, the petitioner filed its return of turn over of various items which were not taxable and hence did not admit the tax in its return. But the Superintendent of Taxes took the view that tax was payable on the sale of containers along with the; non-taxable items sold by the petitioner aad therefore the petitioner should have paid the tax along with return and imposed penalty @ 50% on the tax payable on the containers under the impugned orders dated 18.12.97(Annexures-'G' and'H' to the writ petition). Mr Bhati further contended fthat in any case it has now been held by a Division of this court in Bijoy Singh Bimal Kumar vs State of tAssam (1998)3 GLR 164 (1998(3) GLT, 385 that if no tax is leviable on the goods then no tax can be levied on the contains in which the said goods are contained, provided the; value of such packing materials or containers is small in comparision with the value of such goods or such packing is essential 'or customary for the purchase or sale of such goods. He further pointed out that: a single Judge of this court in Civil Rule No. 2526/ 98 has disposed of a writ petition filed by the present writ petitioner challenging the levy of tax on the containers in which non- taxable goods were packed by the petitioner and sold in terms of the said judgment of the Division Bench in Bijoy Singh Bimal Kumar(supra). According to Mr. Bhati, since no tax was payable on the containers in which non-taxable items were sold by the petitioner, no penalty, was leviable under Section 23 (l)(f) of the Act.

(3.) Mr. B.Goswami, learned Junior Government Advocate, Assam, appearing for the State-respondents, on the other hand, sought to sustain the orders of penalty passed by the Superintendent of Taxes and contended that tax was payable on the containers in which non-taxable items were sold by the petitioner and that no such tax was paid along with the returns and that the penalty orders were justified.