R.K. Vijayvargiya, J.
1. By this reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter referred to as the Act), the Board of Revenue has referred the following question for the opinion of this Court:
Whether or not, on the facts and circumstances of the case, the imposition of penalty on the assessee for late submission of the prescribed quarterly returns and late payment of tax due in respect of the respective returns was legal, proper and justified ?
2. The material facts giving rise to this reference as set out in the statement of the case are these :
The assessee is a dealer in motor vehicles, motor chassis, tractors, their spare parts, petrol and lubricants, etc. He was assessed to sales tax by order dated 17th July, 1969, for the period 1st January, 1966, to 31st December, 1966. The Sales Tax Officer imposed a penalty of Rs. 2,35,000 on the assessee under Section 17(3) of the Act on the ground that the assessee had submitted the four quarterly returns after the delay of one year and three months in respect of the first quarter, of one year in respect of the second quarter and of 9 and 10 months in respect of the third and fourth quarters respectively and that the tax, that should have been paid in respect of these quarterly returns, was also paid late by corresponding periods. The order of the Sales Tax Officer imposing the penalty was maintained in first appeal by the Deputy Commissioner of Sales Tax. In second appeal by the assessee, the Board of Revenue held that there was justification for imposing the penalty but the amount of penalty was reduced from Rs. 2,35,000 to Rs. 1,17,386. At the instance of the assessee, the aforesaid question of law has been referred for the opinion of this Court.
3. For answering the question referred to us, it is necessary to state a few facts more. Section 17(3) of the Act was amended by the Madhya Pradesh General Sales Tax (Amendment and Validation) Act, 1971 (Act No. 13 of 1971) (hereinafter referred to as the amending Act). By Section 5 of the amending Act, Sub-section (3) of Section 17 of the Act was amended to read as follows :
(a) a dealer fails without sufficient cause to comply with the requirements of a notice issued under Sub-section (1); or
(b) a registered dealer fails without sufficient cause to furnish under Sub-section (1) his return for any period in the manner and by the date prescribed thereunder or while furnishing return fails to furnish along with the return the proof of payment, as required by Sub-section (1-A); or
(c) a registered dealer fails to furnish return, (sic)
the Commissioner may, after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty, a sum not exceeding one-fourth of the amount of the tax, which may be assessed on him under Section 18, or where no tax is payable, a sum not exceeding Rs. 100.
By Section 10 of the Act, the amendment to Section 17(3) was made retrospective in effect and it was provided that the aforesaid Section 5 of the amending Act shall be deemed to have formed part of the principal Act from the commencement thereof. It may also be stated that under the unamended provisions of the Act, it was held by this Court in Pyarelal, S/o Basorelal v. State of M.P.  28 STC 130 that no penalty was imposable for delay in filing of return and payment of tax.
4. The learned counsel for the assessee contended that under the provisions of Article 20 of the Constitution of India, no person can be subjected to a penalty greater than that, which might have been inflicted under the law in force at the time of the commission of the offence, and therefore, we will have to find out as to what was the penalty imposable for the wrongful act committed by the assessee when it was committed and to ignore the amendments to Section 17(3) of the Act, which have been given retrospective effect by the amending Act. He contended that as held by this Court, no penalty was imposable for late filing of returns and for delaying the payment of tax when the said acts were committed by the assessee and, therefore, giving effect to the provisions of Article 20 of the Constitution of India, no penalty could have been imposed on the assessee notwithstanding the retrospective operation having been given to the provisions of the amended Section 17(3) of the Act. We are of the opinion that the contention of the learned counsel for the assessee cannot be upheld. Although the contention has been raised in a different form, virtually he has contended that the provisions of the amended Section 17(3) of the Act are ultra vires the provisions of Article 20 of the Constitution of India. It is well-settled that the vires of a statute cannot be challenged before a tribunal, which is the creature of that statute. In K.S. Venkataraman and Co. (P.) Ltd. v. State of Madras : 60ITR112(SC) , it is held by the Supreme Court that as the Income-tax Tribunal is the creature of the statute, it can only decide the disputes between the assessee and the Commissioner in terms of the provisions of the Act. The question of ultra vires is foreign to the scope of its jurisdiction. If an assessee raises such a question, the Tribunal can only reject it on the ground that it has no jurisdiction to entertain the said objection or decide on it. As no such question can be raised or can arise in the Tribunal's order, the High Court cannot possibly give any decision on the question of the vires of a provision. In the present case, as the Board had no jurisdiction to consider the vires of Section 17(3) of the Act, as amended by the amending Act, the said question cannot arise for consideration by this Court in a reference under Section 44 of the Act. The Tribunal and this Court have to take the law as it stands and to decide the question raised on that basis. As Section 17(3) was given retrospective operation, it was the law which authorised the imposition of penalty when the default was committed by the assessee. The learned counsel for the assessee relied upon a decision of the Supreme Court in Tiwari Kanhaiyalal v. Commissioner of Income-tax, Delhi : 100ITR5(SC) and contended that without considering the vires of the amended provisions of Section 17(3) of the Act, it can be held that the said provisions shall not apply to the present case. The facts of that case were entirely different and the ratio of the said case does not apply to the present case.
5. In the circumstances, it cannot be said that the Sales Tax Officer committed an error of law in imposing the penalty on the assessee on account of default committed by him in filing the returns and paying the tax after the prescribed period.
6. As a result of the discussion aforesaid, our answer to the question referred to up is in the affirmative and against the assessee. There shall be no order as to costs of this reference.