NOSHIRWAN AND CO Vs. COMMISSIONER OF SALES TAX
LAWS(MPH)-1980-9-42
HIGH COURT OF MADHYA PRADESH
Decided on September 12,1980

NOSHIRWAN AND CO. Appellant
VERSUS
COMMISSIONER OF SALES TAX Respondents


Referred Judgements :-

FAIRDEAL MOTORS V. COMMISSIONER OF SALES TAX,M.P. [REFERRED TO]
PYARELAL VS. STATE OF MADHYA PRADESH [REFERRED TO]


JUDGEMENT

- (1.)BY this reference under Section 44 of the M. P. General Sales Tax Act, 1958, hereinafter called the Act, the Board of Revenue has referred the following questions of law for the opinion of this Court :
(1) Whether, under the facts and circumstances of the case, the order imposing penalty under Section 17 (3) of the M. P. General Sales Tax Act, 1958, was legal and proper, notwithstanding the fact that the retrospective amendment made to Section 17 (3) under the M. P. General Sales Tax (Amendment and Validation) Act, 1971, was not actually in force during the period when the default was committed, in view of Article 20 (1) of the Constitution of India? (2) Whether the Tribunal was justified in holding that it was debarred from considering the constitutional validity of the contention of the appellant that penalty under Section 17 (3) of the M. P. General Sales Tax Act, 1958, as amended by the M. P. General Sales Tax (Amendment and Validation) Act, 1971, could not be levied by reason of provision under Article 20 (1) of the Constitution of India as the amended section was not actually in existence at the time when the default was committed ?

(2.)THE material facts giving rise to this reference briefly are as follows:
The assessee is a dealer in automobiles, tractors and their accessories, and the assessment year in question is 1966-67. Penalty was imposed on the assessee under Section 17 (3) of the Act by the Regional Assistant Commissioner of Sales Tax, Indore, by his order dated 19th March, 1971. On appeal, the order passed by the Regional Assistant Commissioner imposing penalty was confirmed. The assessee, therefore, preferred second appeal before the Board. The learned President of the Board held that the assessee was liable, to pay penalty, but reduced the quantum of penalty. Aggrieved by the order passed by the Board, the aforesaid questions of law have been referred to this Court at the instance of the assessee.

(3.)THE learned counsel for the assessee contended that under the provisions of Article 20 of the Constitution no person can be subjected to a penalty greater than that which could have been inflicted under the law in force at the time of commission of the offence. It was contended that no penalty was imposable for late filing of return or for delay in payment of tax when the wrongful acts were alleged to have been committed by the assessee. It was, therefore, contended that no penalty should have been imposed on the assessee notwithstanding the fact that retrospective operation had been given to the provisions of the amended Section 17 (3) of the Act. It was also contended that the amended provisions of Section 17 (3) were ultra vires the Constitution.


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