ASSISTANT COMMERCIAL TAXES OFFICER REVENUE AJMER Vs. ARAWALI ASBESTOS CEMENT INDUSTRIES FALNA DISTRICT PALI

JUDGEMENT

(1.) THIS is an application under s. 15 (3a) of the Rajasthan Sales Tax Act, 1954 (No. XXIX of 1954) (for short 'the R. S. T. Act') read with s. 9 of the Central Sales Tax Act, 1956 (Act No. LXXIV of 1956) (which will hereinafter for the sake of brevity be referred to as 'the C. S. T. Act') for directing the Board of Revenue for Rajasthan ('the Board' herein) to state the case and refer the question of law arising out of its order dated March 26, 1979 passed in Special Appeal No. 6/ 78/st/pali as it failed to dispose of the reference application under s. 15 (1) of the R. S. T. Act within a period of 180 days. The question of law suggested by the Assistant Commercial Taxes Officer (Revisions), Ajmer is as under:- "whether under the facts and circumstances of the case, the Board of Revenue was justified in holding that no penalty can be imposed under section 16 (l) (c) of the Rajasthan Sales Tax Act, 1954 read with Section 9 (2) of the Central Sales Tax Act, 1956 for late filing of returns even after retror-spective amendment of section 9 of the Central Sales Tax Act, 1956, by Amending Act No. 103 of 1976?"

(2.) THE dealer-assessee (non-petitioner No. 1) carries on the business of asbestos cement pipes. THE Assistant Commercial Taxes Officer, Ward A, Pali (Assessing Authority) passed the order dated October 26, 1971 under s. 9 of the C. S. T. Act. It was an assessment- cum-penalty order. In addition to the tax assessed the Assessing Authority imposed a penalty of Rs. 1,400/- on the dealer assessee under s. 16 (l) (c) of the R. S. T. Act read with s. 9 of the C. S. T. Act for not filing the returns of turnover along-with deposit of tax within the prescribed time. THE dealer-assessee filed an appeal. THE Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur by his order dated May 16, 1972 deleted the penalty of Rs. 1, 400/- on the ground that the penalty for late filing of returns as provided by the R. S. T. Act could not be imposed under the C. S. T. Act as there is no such provision for levy of penalty under the C. S. T. Act. He observed in his order as under :- "thus, the assessing authority cannot invoke the provisions of the State Act to levy penalty for offence committed under the C. S. T Act

(3.) BEFORE a division Bench of the Bombay High Court in Commissioner of Sales Tax vs. Bombay Commercial Traders (3) a question arose whether the provision of s. 36 (3) of the Bombay Sales Tax Act, 1959 could not be imported in the assessments under the C S. T. Act to levy penalty for late payment of central sales tax and such levy of penalty was without the authority of law. The insertion of new sub-s (2a) in s 9 of the C. S. T. Act by the Amending Act was considered. The Division Bench speaking through DP. Madon, J. , as he then was, observed as under :- "section 9 of the Amending Act is a validating section and makes the provisions of sub-section (2a) of section 9 inserted by the Amending Act to operate with retrospective effect. It also validates the imposition and collection of penalties levied before the commencement of the Amending Act which were invalid by reason of the aforesaid decision of the Supreme Court. In view of the provisions of section 9 of the Amending Act, it must be held that the imposition of penalty upon the respondents by the Sales Tax Officer for late payment and non-payment of tax under the Central Act was valid. We accordingly answer the question submitted to us in the negative. "