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Commissioner of Sales Tax Vs. Chhogmal Shankarlal - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberM.C.C. No. 97 of 1980
Judge
Reported in[1983]52STC42(MP)
AppellantCommissioner of Sales Tax
RespondentChhogmal Shankarlal
Advocates:Kulshreshtha, Additional Government Adv.
Cases ReferredIn Pyarelal v. State of Madhya Pradesh
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - a best judgment assessment was made and the gross turnover was determined at rs......for the assessment year 1965-66 also the board of revenue adopted the same view and cancelled the penalty imposed under section 27(2) of the act. at the instance of the commissioner of sales tax the board has referred the above-mentioned questions for our opinion.6. sections 19(1) and 43(1) of the sales tax act refer to the power to impose penalty for concealment of turnover. section 19(1) empowers the commissioner to impose penalty when there is reassessment of account (sic) due to an omission attributed to the dealer. section 43 deals with the power for imposing penalty on concealment of turnover. it has been held by this court in commissioner of sales tax, m. p. v. sohanlal sureshchandra [1979] 43 stc 229 that the penalty can be imposed either under section 19 or under section 43 of.....
Judgment:

K.N. Shukla, J.

1. This order shall also govern the disposal of Miscellaneous Civil Case No. 98 of 1980 as a single reference has been made giving rise to identical questions for the assessment years 1964-65 and 1965-66.

2. The Board of Revenue, Madhya Pradesh (the Tribunal under the Sales Tax Act), has stated the case and referred the following questions for our opinion :

(1) Whether, under the facts and circumstances of the case, the Tribunal was justified in setting aside the penalty of Rs. 3,000 imposed under Section 27(2) of the Act with regard to the assessment for the year 1964-65 on the ground that penalty had already been imposed under Section 19(1) of the Act in respect of the concealment of the same turnover ?

(2) Whether, under the facts and circumstances of the case, the Tribunal was justified in setting aside the penalty of Rs. 2,000 imposed under Section 27(2) of the Act in respect of the assessment for the year 1965-66 on the ground that penalty had already been imposed under Section 43(1) of the Act in respect of the concealment of the same turnover ?

3. Relevant facts as stated by the Tribunal are as follows : The non-applicant is a dealer in kirana. For the assessment year 1964-65, the assessment was completed on 20th May, 1966, on a gross turnover of Rs. 1,74,053. Subsequently it was discovered that the dealer was maintaining double accounts and there was a concealment of turnover of Rs. 1,48,664. The case was reopened under Section 19(1) of the Sales Tax Act and the escaped turnover was assessed to tax. Penalty of Rs. 8,000 was imposed under Section 19(1) of the Act. It was further held that the dealer had not issued cash memos or vouchers to the customers in respect of the sales worth Rs. 48,664. Separate penalty of Rs. 3,000 was imposed under Section 27(2) of the Act.

4. For the assessment year 1965-66, again the turnover based on the accounts of the dealer was rejected as it was discovered that the dealer was maintaining double accounts and sales worth Rs. 1,23,964 had been concealed. A best judgment assessment was made and the gross turnover was determined at Rs. 3,85,000 against Rs. 2,39,944 returned by the dealer. The Sales Tax Officer imposed a penalty under Section 43(1) of the Act on the ground that the dealer had concealed the turnover in the returns filed by him. Further a penalty of Rs. 2,000 was imposed under Section 27(2) of the Act on the ground that the dealer had not issued cash memos or vouchers in respect of the sales which were discovered in the double account.

The assessee appealed against the imposition of penalties for both the assessment years. It was contended before the first appellate authority that the penalty under Section 19(1) of the Act covered all the irregularities, and therefore penalty under Section 27(2) for the same default was not justified. This contention was rejected by the Assistant Commissioner. The assessee went in further appeal before the Board of Revenue. The Board of Revenue (Tribunal) accepted the contention of the assessee observing that though legally penalty under Section 27(2) could have been imposed for not issuing bills and cash memos in respect of the concealed sales yet 'taking a practical view and in the interest of natural justice it was not proper to impose a further penalty in respect of the concealed turnover under Section 27(2) of the Act when maximum penalty under Section 19(1) had already been imposed'.

5. For the assessment year 1965-66 also the Board of Revenue adopted the same view and cancelled the penalty imposed under Section 27(2) of the Act. At the instance of the Commissioner of Sales Tax the Board has referred the above-mentioned questions for our opinion.

6. Sections 19(1) and 43(1) of the Sales Tax Act refer to the power to impose penalty for concealment of turnover. Section 19(1) empowers the Commissioner to impose penalty when there is reassessment of account (sic) due to an omission attributed to the dealer. Section 43 deals with the power for imposing penalty on concealment of turnover. It has been held by this Court in Commissioner of Sales Tax, M. P. v. Sohanlal Sureshchandra [1979] 43 STC 229 that the penalty can be imposed either under Section 19 or under Section 43 of the Act but not under both. The principle underlying this decision is that both these sections are intended to penalise a dealer for concealment of turnover.

7. However, Section 27(2) of the Act stands on a different footing altogether. Section 27(1) enjoins a dealer whose turnover exceeds Rs. 60,000 in any year to issue to the purchasers a bill or a cash memo for sales exceeding Rs. 20 in value. For non-compliance of this statutory obligation, penalty is imposable under Section 27(2) of the Act. This provision covers entirely a different matter and though the overall object of the statute is to bring to tax the total turnover of a dealer, it cannot be said that Section 27 is a repeated exercise of Sections 19 and 43 of the Act which deal with concealment of turnover. Section 27 of the Act undoubtedly is meant partly to check concealment of turnover but it also serves the purpose of safeguarding the interests of the customers. In Pyarelal v. State of Madhya Pradesh [1971] 28 STC 130 this question was considered by this Court and it was held that in addition to the penalty imposed under Section 43(1) of the Act the dealer was liable to penalty under Section 27(2) of the Act also for not issuing cash memos or maintaining the counterfoils of the bills of sales.

8. We therefore hold that the Board of Revenue (Tribunal) was not justified in setting aside the penalty of Rs. 3,000 imposed under Section 27(2) of the Act with regard to the assessment year 1964-65 and Rs. 2,000 with regard to the assessment year 1965-66 on the ground that penalty had already been imposed under Section 19(1) and under Section 43(1) of the Act for the assessment years respectively. Both the questions are answered in the negative, in favour of the department and against the assessee.

9. There will be no order as to costs.


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