R.J. Bhave, J.
1. The petitioner is a Hindu undivided family trading under the name and style 'Messrs Ratanlal Hukumchand' at Ujjain and is a registered dealer under the Madhya Pradesh General Sales Tax Act, 1958, and was also a registered dealer under the Madhya Bharat Sales Tax Act, 1950 (Act No. 30 of 1950) which has been repealed by the Madhya Pradesh General Sales Tax Act, 1958. The Sales Tax Officer, Ujjain, for the assessment year 1957-58 assessed the petitioner-firm, by an order, dated 30th September, 1961. By another order, dated 28th November, 1961, the said officer imposed a penalty of Rs. 5,000 against the petitioner under Section 14(1)(e) of the Madhya Bharat Sales Tax Act. The petitioner filed revision petitions against the said orders before the Additional Commissioner of Sales Tax, M.P., Indore. The revisional authority modified the assessment order to certain extent and also reduced the penalty. In this petition under Article 226 of the Constitution the petitioner seeks a writ of cerliorari for quashing the said orders.
2. From the assessment record it appears that for the first three quarters the returns were filed on 29th July, 1957, 28th October, 1957, and 28th January, 1958, and the sales tax amounting to Rs. 4,000 was also deposited. No return was filed for the last quarter. After notice to produce account books etc., the case was fixed for 25th July, 1961. On that date, on the request of the petitioner, the case was adjourned to 19th August, 1961, and, again on the same request, to 30th August, 1961. On 30th August, 1961, the Sales Tax Officer was out of station in connection with some official work and the case was adjourned to 29th September, 1961. The karta of the petitioner's family was personally present on that date. On 29th September, 1961, again, an application was made for further adjournment which was rejected by the Sales Tax Officer and the case was closed for orders. In the order, dated 30th September, 1961, the Sales Tax Officer observed that the petitioner was given a number of adjournments before 29th September, 1961, and on that date again, when the adjournment was sought, it was refused. The Sales Tax Officer formed an opinion that the petitioner was not prepared to produce his account books and that he was interested in protracting the proceedings in order to avoid the payment of tax. As no account books were produced before the Sales Tax Officer, he proceeded to assess the petitioner under Section 8(4) of the Madhya Bharat Sales Tax Act to the best of his judgment and determined the tax liability at Rs. 19,896.12 nP. after giving the deduction of Rs. 4,000 already deposited. The Sales Tax Officer also imposed a fine of Rs. 200 for the petitioner's failure to file the return for the last quarter. After the assessment order was passed, the Sales Tax Officer issued a notice to the petitioner to show cause why a penalty should not be imposed under Section 14(1)(e) of the Madhya Bharat Sales Tax Act and imposed the penalty of Rs. 5,000.
3. Shri C.P. Sen, learned counsel for the petitioner, urged before us that the Sales Tax Officer was in error in refusing adjournment on 29th September, 1961; there was no justification for reaching the conclusion that the petitioner was not prepared to produce his account books and on that ground resorting to 'best judgment' assessment under Section 8(4) of the Madhya Bharat Sales Tax Act. It is an undisputed fact that on two occasions the adjournment was granted at the request of the petitioner. On 30th August, 1961, when the case was adjourned to 29th September, 1961, the karta of the petitioner's family was present and he knew the date to which the case was adjourned. Even if it is assumed that because of cases fixed elsewhere it was not passible for him to attend the assessment proceedings personally, there was nothing to prevent him from producing his account books through his agents. In these circumstances, it cannot be said that the Sales Tax Officer committed any error in closing the case. Whether the petitioner should have been granted a further adjournment or not was a matter of discretion with the Sales Tax Officer. The exercise of the discretion in this case cannot be said to be mala fide or capricious. We, therefore, do not find any reason to quash the assessment order on that ground.
4. It was, then, urged that at least the imposition of the penalty was without jurisdiction. For this submission, reliance is placed on Section 52 of the Madhya Pradesh General Sales Tax Act, 1958. Section 52 reads :
52. Repeal and savings :-(1) The Central Provinces and Berar Sales Tax Act, 1947, the Madhya Bharat Sales Tax Act, Samvat 2007, the Central Provinces and Berar Sales Tax Act, 1947, as extended to Vindhya Pradesh and Bhopal regions and as in force in those regions immediately before the commencement of this Act, and the Rajasthan Sales Tax Act, 1954, as in force in Sironj region, are hereby repealed:
Provided that such repeal shall not affect the previous operation of the said Acts or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate or licence) in the exercise of any power conferred by or under the said Acts shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken ; and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.* * * *
The argument is that the assessment was made after the Madhya Pradesh General Sales Tax Act came into force and that it shall be deemed to have been made under that Act. There is no provision in the present Act analogous to Section 14(1)(e) of the Madhya Bharat Sales Tax Act empowering the Sales Tax Authorities to impose penalty for failure of the dealer to furnish accurate particulars of the turnover in his return. It was urged that the first part of the proviso was not attracted, as the liability to pay penalty was not incurred till the Sales Tax Authorities determined that the returns filed by the petitioner were not correct. The conclusion that the returns were not correct was only reached after assessment in 1961 when the Madhya Bharat law was no longer in force. It was, therefore, submitted that the imposition of penalty was without jurisdiction.
5. It cannot be denied that so far as the rights, obligations and liabilities are saved by the first part of the proviso, the effect is that portions of the repealed Act pro tanto remain in force as if the repealing Act has not been passed. It has been held in Hanumanprasad v. Sales Tax Officer 1963 M.P.L.J. 421 that though the fiction introduced by the second part of the proviso to Section 52(1) of the Madhya Pradesh General Sales Tax Act is widely worded and covers anything done or any action taken, including assessments already made, under the repealed Acts, its effect is, however, curtailed by two restrictions : in the first place, it is subject to part (i) of the proviso and cannot be read as overriding its effect; and, secondly, it cannot be given effect to in so far as it is inconsistent with the provisions of the repealing Act. In this view of the matter, it was held in that case that for assessment year 1956-57 the assessee was liable to be assessed under the provisions of the repealed Act only. The question that calls for our consideration is as to whether the petitioner had incurred the liability of being penalized for his failure to submit correct returns before the Madhya Pradesh General Sales Tax Act came into force. In other words, is the penalty matter covered by the first part of the proviso under Section 52(1) of the Madhya Pradesh General Sales Tax Act ?
6. We have already indicated that three returns, which are the subject-matter of the penalty proceedings, were filed when the Madhya Bharat Sales Tax Act was in operation. Under the scheme of that Act a registered dealer is required to file his return at the end of each quarter and he is also required to deposit the sales tax due as per his return. When the Act requires the filing of the returns, it is implicit in the requirement that the returns must state the correct state of affairs. If the registered dealer has not filed a correct return, the obligation to be penalized is incurred at that moment. Whether the returns filed were correct or not may be determined at a future date. That determination has nothing to do with the question of the liability having been incurred. We are of the view that the case falls within the first part of the proviso and the fact that the assessment was completed in 1961, that is, after the Madhya Bharat Act was repealed and the penalty was actually imposed thereafter, is of no consequence. In this view of the matter, we are of the opinion that the Sales Tax Authorities were right in not only assessing the petitioner under the Madhya Bharat Sales Tax Act but also in imposing the penalty under that Act. The fact that there is no provision in the Madhya Pradesh General Sales Tax Act corresponding to Section 14(1)(e) of the Madhya Bharat Sales Tax Act is of no consequence so far as this petition is concerned.
7. No other ground was urged before us.
8. The petition fails and is dismissed with costs. Hearing fee Rs. 150. The outstanding amount of the security deposit, after deduction of costs, shall be refunded to the petitioner.