Decided on December 22,1959



- (1.)IN this case the only point taken by Mr. N.C. Mehta for the applicants is that the authorities below have erred in passing an order of assessment and also an order regarding penalty in the same order. His contention is that such an order was illegal and should be set aside. This point was not taken before the Sales Tax Officer, probably because the applicants did not know whether any penalty would be levied on them. On appeal against the order of the Sales Tax Officer it was contended that an officer acting under the Act cannot pass two such orders in the same order. The penalty has been levied under Section 39 -A of the Act of 1953. This argument was rejected by the Assistant Collector. In revision it was again contended before the Additional Collector of Sales Tax that the order was bad in law as it had been passed under two separate sections. The Additional Collector noted that the applicants were unable to cite any authority in support of this view and he held it was permissible for an officer to pass orders under two or more sections in one order only. He, accordingly, dismissed the revision application. Mr. Mehta has relied on our decision in The State of Bombay v. Joharimal Deviprasad 9 S.T.D. 138, in which we have held that forfeiture is different from tax and that the object of a taxing statute is not to recover a penalty but to recover tax. The question in that case was whether an order of forfeiture or a penalty was within the purview of Sub -section (1) of Section 34 of the Act and this question was answered by us in the negative. Mr. Mehta has contended that in case he seeks reference to the High Court in this case, he will have to make his application with reference only to that part of the order which relates to the assessment and not to the part which deals with penalty. We do not think that this argument goes to show that a person cannot be taxed and subjected to a penalty in the same order under the Act, there being no express prohibition of such procedure thereunder. In Form XV of the Bombay Sales Tax (Procedure) Rules, 1954, there is no reference to any penalty that can be imposed under Section 39 -A of the Act of 1953. Yet, curiously enough, we find that in the form printed for use by the department a heading has been inserted regarding the penalty under Sub -section (1) of Section 39 -A. The printing of this heading is obviously in contravention of the requirements of the Act and the rules made thereunder and Form XV of the Bombay Sales Tax (Procedure) Rules, 1954 and the sooner this entry is deleted the better. We think that there is no bar under the Act or the rules made thereunder against the passing of one order embodying an order of assessment as well as an order for the levy of penalty under the Act. The contention raised, therefore, fails and the the application is dismissed.

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