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Assistant Commercial Taxes Officer (Revisions) and anr. Vs. Arawali Asbestos Cement Industries and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Sales Tax Case No. 92 of 1980
Judge
Reported in[1985]60STC349(Raj); 1985(2)WLN16
AppellantAssistant Commercial Taxes Officer (Revisions) and anr.
RespondentArawali Asbestos Cement Industries and anr.
Advocates: K.C. Bhandari, Adv.
DispositionPetition allowed
Cases ReferredCommissioner of Sales Tax v. Bansidhar Devendrakumar
Excerpt:
.....it stands validated.;after the insertion of section (2-a) in section 9 of the cst act by amending act, the penalty imposed under section 16(1)(c) of the rst act by order dated october 26, 1971 passed by the acto, ward a, pali, stands validated for the late filing of the returns.;revision allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not..........provisions of section 9 of the amending act, the imposition of penalty upon the dealers for late payment and non-payment of tax under the cst act, prior to the commencement of the amending act, has been validated. the provisions contained in section 9(2), 9(2a) of the cst act and section 9 of the amending act, were examined in shiv dutt rai fateh chand v. union of india [1983] 53 stc 289 (sc). it was laid down therein that the amending act contained, inter alia, the validating provisions declaring that the provisions of section 9 so amended, would have effect and should be deemed always to have had effect in relation to the period commencing from 5th january, 1957 as if the section also provided that all provisions relating to penalties of the general sales tax law of each state, with.....
Judgment:

S.K. Mal Lodha, J.

1. This is an application under Section 15(3A) of the Rajasthan Sales Tax Act, 1954 (No. XXIX of 1954) (for short 'the RST Act') read with Section 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 CST 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 Section 15(1) of the RST 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(1)(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 retrospective 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 Section 9 of the CST 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 Section 16(1)(c) of the RST Act read with Section 9 of the CST 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 RST Act could not be imposed under the CST Act as there is no such provision for levy of penalty under the CST 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 CST Act....

3. The Assessing Authority filed a revision before the Board. The revision was heard by the Chairman of the Board, who dismissed the revision by his order dated 7th August, 1978. He concurred with the view taken by the Deputy Commissioner (Appeals). A special appeal was filed before the Division Bench of the Board. The Division Bench of the Board dismissed the special appeal by its order dated March 26, 1979. It held as under :

Thus in 1971 when the penalty was imposed under Section 16(1)(c), unless a penalty was provided in the Central Sales Tax Act for late submission of returns penalty could not have been imposed and it has been held accordingly by the Deputy Commissioner (Appeals) and the learned Chairman sitting in revision.

4. The contention raised regarding the amendment of Section 9(2) of the CST Act as made by the Central Sales Tax (Amendment) Act, 1976 (Act No. 103 of 1976) ('the Amending Act' herein), the Division Bench observed that this was irrelevant. Subsequently an application under Section 15(1) was filed. As the application was not disposed of within the period of 180 days, this application under Section 15(3A) of the RST Act was submitted on 12th May, 1980. In view of the provisions contained in Section 13(10) of the Rajasthan Sales Tax (Amendment) Act, 1984 (Act No. XX of 1984) (for short 'the Amendment Act' hereinafter) which has come into force from 1st May, 1985 this application which was pending at the time of the commencement of the Amendment Act has been treated as a revision under Section 15 of the RST Act as substituted by the Amendment Act of 1984.

5. We have heard Mr. K. C. Bhandari, learned Counsel for the Assessing Authority. No body has appeared on behalf of the dealer-assessee.

6. The facts regarding which there is no dispute before us and which have been mentioned in the order of the Revenue authorities are these : The penalty was imposed on the dealer-assessee under Section 16(1)(c) of the RST Act read with Section 9 of the CST Act for not filing returns of turnover along with deposit of tax within the prescribed time. This order was passed on October 26, 1971. There was no provision for levying penalty under the CST Act as is contained in the RST Act. Section 9 of the Act deals with levy, collection of tax and penalties.

Section 9. (2A) All the provisions relating to offences and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, reassessment, collection and the enforcement of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment, reassessment, collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law.

7. Section 9(2A) of the CST Act makes provisions relating to offences and penalties of the general sales tax law of each State applicable in relation to assessment, reassessment, collection and the enforcement of the payment of any tax required to be collected under the CST Act. The references to the terms in Sub-section (2A) are to be construed to refer to the law as it stands at the time it is sought to be applied with all the changes made from time to time. In other words, the provisions relating to offences and penalties in the State Act as existing on the date when their application is called for, will apply for purposes of the CST Act. 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 decision of the Supreme Court in Khemka & Co. (Agencies) Pvt. Ltd. v. State of Maharashtra [1975] 35 STC 571 (SC). In view of the provisions of Section 9 of the Amending Act, the imposition of penalty upon the dealers for late payment and non-payment of tax under the CST Act, prior to the commencement of the Amending Act, has been validated. The provisions contained in Section 9(2), 9(2A) of the CST Act and Section 9 of the Amending Act, were examined in Shiv Dutt Rai Fateh Chand v. Union of India [1983] 53 STC 289 (SC). It was laid down therein that the Amending Act contained, inter alia, the validating provisions declaring that the provisions of Section 9 so amended, would have effect and should be deemed always to have had effect in relation to the period commencing from 5th January, 1957 as if the section also provided that all provisions relating to penalties of the general sales tax law of each State, with necessary modifications applied in relation to the assessment, reassessment, collection and enforcement of payment of any tax required to be collected under the CST Act. Thus, by giving retrospective effect, Section 9(2A) w. e. f. 5th January, 1957 in so far as penalties were concerned by enacting Sub-section (1) of Section 9 of the Amending Act, the deficiency pointed out in Khemka & Co.'s case [1975] 35 STC 571 (SC) was removed.

8. Before a Division Bench of the Bombay High Court in Commissioner of Sales Tax v. Bombay Commercial Traders [1978] 41 STC 215 a question arose whether the provision of Section 36(3) of the Bombay Sales Tax Act, 1959 could not be imported in the assessments under the CST 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-section (2A) in Section 9 of the CST Act by the Amending Act was considered. The Division Bench speaking through D. P. 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 the 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.

9. The Bombay Commercial Traders' case [1978] 41 STC 215 was followed in Commissioner of Sales Tax v. Bansidhar Devendrakumar 1982 Tax LR 3114. It was held that after the Gentral Sales Tax (Amendment) Act, 1976 Sub-section (2A) has been introduced in Section 9 with retrospective effect, the consequence of this is that the levy of penalty has now been validated. In these circumstances, it cannot be said that the Sales Tax Authorities had no jurisdiction to levy penalty under Section 36(2)(c) of the Bombay Sales Tax Act, 1959. We are in respectful agreement with the reasons given in Bombay Commercial Traders' case [1978] 41 STC 215 and Bansidhar Devendrakumar's case 1982 Tax LR 3114 and do not propose to multiply authorities in support of the view taken therein.

10. After the insertion of Sub-section (2A) in Section 9 of the CST Act by the Amending Act, the penalty imposed under Section 16(1)(c) of the RST Act by order dated 26th October, 1971 passed by the ACTO, Ward A, Pali, stands validated for the late filing of the returns.

11. The view taken by the Board in the revision and the special appeal by its orders dated August 7, 1978 and March 26, 1979 is not correct in the face of the insertion of Sub-section (2A) in Section 9 of the CST Act. The penalty was imposable under Section 16(1)(c) of the RST Act for not filing the returns within the prescribed time, and that has been validated.

12. The application, which has been treated as a revision, is allowed and the order dated 16th May, 1972 of the Deputy Commissioner (Appeals), order dated 7th August, 1978 passed in revision by the Board and order dated 26th March, 1979 passed in special appeal by the Board are set aside and it is held that the penalty imposed by the order dated 26th October, 1971 passed by the ACTO, Ward A, Pali, stands validated by virtue of the provisions contained in Section 9(2A) of the CST Act.

13. As no body has appeared on behalf of the respondent, there will be no order as to costs.


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