ASSISTANT COMMERCIAL TAXES Vs. SHREE AUTOMOBILES WORKS

JUDGEMENT

(1.) BY order dated December 22, 1976, this Court directed the Board of Revenue for Rajasthan, Ajmer ('the Board' here in) to draw a statement of the case and refer the following question for its opinion: Whether, in the facts and circumstances of the case, the Board of Revenue was justified in holding that the words 'tax determined' as appearing in Section 16(1)(c) of the Rajasthan Sales Tax Act, 1954 as it then stood, meant 'the amount of tax that remained to be recovered ? The dealer assessee, in respect of the assessment year 1961 -62, was assessed to tax under the provisions of the Rajasthan Sales Tax Act, 1954 (No. XXIX of 1954) (for short 'the Act') by the Assistant Commercial Taxes Officer, 'A' Ward, Jodhpur (ACTO) on April 28, 1965. The total tax assessed was Rs. 12,343.72. The dealer -assessee had already deposited, prior to assessment order, an amount of Rs. 10,000/ - as tax. The 'tax due' was Rs. 2343.72. The ACTO imposed penalty under Section 16(1)(c) of the Act amounting to Rs. 6171/ -. The reasons for imposing penalty were that dealer -assessee did not file any return in the year 1960 -61 and consequently best judgment assessment was made and that the dealer -assessee is in the habit of using the tax amount in business and he also constructed a residential house and instead of depositing the amount in the Government treasury, he used that in the construction of the house. The explanation of the dealer -assessee was not accepted. The returns were not filed within time limit, without showing any reasonable cause for not doing so. The returns were filed on March 27, 1965 and that too without depositing the full amount of tax according to the returns. An appeal was filed. The Deputy Commissioner (Appeals), Commercial Taxes, Udaipur, by his order dated December 30, 1966, discarded the explanation given by the dealer -assessee. He, however, reduced the penalty from Rs. 6171/ - to Rs. 4100/ -. The material observations made by the Deputy Commissioner (Appeals), are as follows: Taking this fact into consideration and also that out of the tax assessed amounting to Rs. 12,328/ - the assessee had deposited Rs. 10,000/ - in advance though late and also other facts and circumstances of the case, I feel the ends of justice would amply be met if a penalty of Rs. 4,100/ - were imposed for the above default. The assessee went in revision. The single Member of the Board was of the opinion that the penalty was leviable under Section 16(1)(c) of the Act. He, maintained the order of the Deputy Commissioner (Appeals) but maintained the penalty of Rs. 4,100/ - and declined to make further reduction in the penalty. A special appeal was filed under Section 14(4A) of the Act. The Division Bench of the Board reduced the penalty of Rs. 4,100/ - to Rs. 1,170/ -under Section 16(1)(c) of the Act. The reason given by the Division Bench may usefully be excerpted below: According to the judgment of the assessee had collected sales tax amounting to Rs. 12,295.80 from his customers for the year 1961 -62 against which he paid to Rs. 10,000/ - in March, 1965. Thus, Rs. 2,295.80 recovered sales tax remained in possession of the assessee which ought to have been remitted to the Government Treasury. Moreover the assessing authority finally determined a tax of Rs. 2,343.72 for the assessment year in question. He could impose at least 50 per cent of this amount by way of penalty under Section 16(1)(c) of the R.S.T. Act. An application under Section 15(1) of the Act was filed by the ACTO. That application was not disposed of within 120 days from the date of the filing of the application. As such application under Section 15(3A) was filed before this Court. This Court directed the Board to refer the aforesaid question.

(2.) THIS reference was pending when the Rajasthan Sales Tax (Amendment) Act, 1984 (No. XX of 1984) (for short 'the Amendment Act') came into force on May 1, 1985. According to Section 13(11) of the Amendment Act this reference has to be treated as revision under Section 15 of the Act as substituted by the Amendment Act. We accordingly dispose of this reference treating it as revision.

(3.) THE following facts may usefully be noticed regarding which, there cannot be any dispute. During the relevant assessment year, the ACTO by his order dated April 28, 1965, determined the tax at Rs. 12,343.72. The assessee had not filed the quarterly return along with the tax due as per return. Consolidated return was filed on March 2.8, 1965 for the relevant accounting year in question and deposited Rs. 10,000/ - in the treasury.