COMMISSIONER OF SALES TAX Vs. UTTAM CONSTRUCTION CO

JUDGEMENT

(1.) A statement of the case has been submitted under Section 44 (1) of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act"), referring the following question of law to this Court for its opinion :

(2.) THE short facts relevant for the disposal of this reference may be culled from the statement of the case itself. The non-applicant, Uttam Construction Co. , Khairagarh, undertakes Public Works Department and Irrigation Department contracts. He was assessed under the M. P. Entry Tax Act as an unregistered dealer (underlining Here italicised. is ours for the sake of emphasis) for the period November 1, 1978 to October 21, 1979, by the Additional Sales Tax Officer, Rajnandgaon, vide order dated December 5, 1980. The tax was assessed at Rs. 34,033. 76 and a penalty of Rs. 6,000 was also imposed under Section 17 (3) of the Act. Subsequently, the assessment order was rectified twice and the tax assessed was reduced and the penalty was also reduced to Rs. 3,000. Annexures B-1 and B-2 are copies of the assessment and rectified assessment orders respectively. Being aggrieved by the first rectified order dated February 2, 1981, the non-applicant (unregistered dealer) filed first appeal before the Appellate Deputy Commissioner of Sales Tax. The appeal was rejected vide order dated September 29, 1982. Being aggrieved by the aforesaid order, the non-applicant filed second appeal before the Tribunal. This appeal was decided by the Tribunal on July 22, 1983. The penalty imposed under Section 17 (3) of the Act was set aside. The Tribunal was of the view that Section 17 (1) of the Act provides in the case of the dealers other than registered dealers that they may be required by the Commissioner by a notice served in the prescribed manner to furnish the return. Under Section 7 (4) of the Act, a dealer liable to pay tax has been deemed as registered dealer. This deeming provision has not been adopted under Section 13 of the Entry Tax Act. Therefore, penalty under Section 17 (3) of the Act could not be imposed in this case as no notice as required by Section 17 (1) of the Act was issued to the non-applicant. Annexure D is a copy of the order of the Tribunal. This being the question, the only point for consideration is as to whether the non-applicant (unregistered dealer) was liable to pay any penalty under the provisions of the M. P. Entry Tax Act, 1976 ?

(3.) SECTION 17 (1) of the Act, reads thus :