ASHOK BHAN, J. - (1.) THIS is an application under section 42 (2) of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act"), for directing the Sales Tax Tribunal, Haryana (hereinafter referred to as "the Tribunal"), to refer the following three questions of law, stated to be arising from the order of the Tribunal, for the opinion of this Court : " (i) Whether, the Ld. Tribunal was right in holding that the penalty was legally imposed under section 36 (6) while admitting that there was no surplus stock not accounted for in the registers or accounts ? (ii) Whether section 36 (6) is applicable in case of goods found in office, shop, godown or any other place of business but not accounted for in his books, accounts, stock registers for short stocks as well ? (iii) Whether under law a penalty for one offence could legally be imposed for the alleged other offence for which separate penalty is provided under the Act ?"
(2.) SHORTLY stated, the facts are : Premises of the assessee-firm were inspected on October 26, 1982 but on demand the account books were not produced. Stocks were checked and on physical verification, if was found that the stocks were less than the stocks entered in the store register. Notice under section 36 (6) of the Act was then issued. Initially, the Excise and Taxation Officer (Enforcement) held that 10 bags of maida, 1 bag of suji and 1,125 bags of wheat of the value of Rs. 1,82,345 remained unexplained. He, therefore, imposed penalty under sections 36 (6) and 51 of the Act, which was upheld by the first appellate authority as well as by the Tribunal. Assessee filed an application under section 41 (1) of the Act before the Tribunal for making a reference to this Court for its opinion of the questions, which have been reproduced in the earlier part of the judgment. The said application was declined, aggrieved against which, present application has been filed. Section 36 (6) of the Act reads as follows : "Any officer referred to in sub-section (1) shall have the power to impose a penalty of not less than ten per cent and not more than twenty-five per cent of the value of goods which are found in any office, shop, godown or any other place of business or any building or place of the dealer or vessels or goods-carrier but not accounted for by the dealer or the person in-charge of the vessel or goods carrier in his books, accounts, registers and other documents. "
(3.) ARGUMENT raised by the counsel for the assessee is that penalty under section 36 (6) of the Act could only be imposed if the stocks found on physical verification were more than the stocks reflected in the stocks register and not in a case where there was shortage of stocks vis-a-vis the stocks shown in the stocks register. It was argued that the words "not accounted for" in section 36 (6) of the Act could only refer to a situation where the physical stocks were in excess of the stocks reflected in the stocks register and not in the reverse situation where the stocks found were less than what had been shown in the stocks register.;