BHAGWAN DASS KULDEEP KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition has been filed under section 42 (2) of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act"), for issuance of a direction to the Sales Tax Tribunal, Haryana, Chandigarh (hereinafter referred to as "the Tribunal") to draw a statement of the case and refer the following questions of law, arising out of the order dated September 30, 1988, passed by the Tribunal :

(2.) ASSESSEE -petitioner (hereinafter referred to as "the petitioner") is a registered dealer having Registration Certificate No. HIS/hgst/21814. On August 27, 1987 at about 10. 30 p. m. , tanker No. HYH-781 carrying 12,000 kilograms mustard oil from Hissar to Delhi was intercepted by the checking party headed by the Excise and Taxation Officer on the Asaudhan-Kulashi-Kanonda escape route. Tanker belonged to the assessee. Driver of the tanker was asked to produce the documents of the goods. Bhim Sain, S/o. Shri Ram Kishan, claiming himself to be the accountant of the assessee, alighted from the tanker and handed over the following documents :

(3.) REGARDING question No. (ii), relying upon notification dated May 5, 1973, issued by the Haryana Government, in exercise of its powers under section 3 of the Act, it was argued that an Assessing Authority can levy penalty with respect to matters connected with and arising out of assessment only. "Assessing Authority" has been defined in section 2 (a) of the Act and it means any person authorised by the State Government to make any assessment under this Act and to perform such other duties as may be required, by or under this Act. Section 3 authorises the State Government to appoint a person to be the Commissioner and such other persons to assist him as it thinks fit for carrying out the purposes of the Act. Commissioner shall have jurisdiction over the whole of the State and shall exercise all the powers conferred and perform all the duties imposed on the Commissioner, by or under the Act. Persons appointed under section 3 (1) of the Act, shall exercise such powers as may be conferred and perform such duties as may be required, by or under this Act. Precise contention raised by the counsel for the assessee is that since no assessment was to be framed, Excise and Taxation Officer, upon whom powers under section 3 (1) of the Act have been conferred, as an assessing officer, could not impose of penalty under section 37 (6) of the Act.