Decided on January 23,1967



- (1.)JAINARAIN Sharma for M/s. Ganeshi Lal Gaindi Lal, Kota in both the revisions. These two revision petitions have been filed against the order of the learned Dy. Commissioner Excise & Taxation (Appeals), Jaipur, dated 1. 6. 64 in respect of the assessment of M/s. Ganeshilal Gaindilal, Kota, for the period 1962-63. They win be disposed of by this common order as they relate to the same judgment.
(2.)THE assessee in his revision petition has attacked the impugned order in respect of the penalty of Rs. 600/- imposed by the Sales Tax Officer under Sec. 16 (1) (b) of the Rajasthan Sales Tax Act for not depositing the tax due in time for the year ending Dewali 1962. He has taken two grounds. THE first ground is that the tax does not become due until assessment has been made. It is argued from this Premise that he was not liable to any penalty since no tax had been determined by the competent assessing authority and since Sec. 16 (l) (b) relates to default in payment following the determination of the tax due, the Sales Tax Officer was not justified in imposing the penlty.
The second argument is that no notice was issued before imposing the penalty as required under the rules.

The learned Government Advocate has repelled the first argument by referring to the State of Rajasthan and others vs. Ghasilal (1965 STC Vol. XVI 318), a perusal of which would show that tax payable is ascertained in two ways. (a) by the assessing authority under Sec. 10 or (b) by the assessee under Sec. 7 (2) of the Rajasthan Sales Tax Act. It is contended that in this case, the assessee had shown the amount of tax payable by him as Rs. 8,013,28 in the returns submitted by him, but he had deposited only a sum of Rs. 5,013,99. He had thus withheld the payment of Rs. 3,000/- of tax which was due according to the returns submitted by him and that no valid reason was shown for the non-payment of the full tax within the prescribed time. It is obvious that this satisfactorily meets the first objection of the learned counsel for the assessee. Nevertheless, the second objection remains unchallenged. No notice has been shown to have been served on the assessee regarding the imposition of penalty on him as required under rule 54 of the Rajasthan Sales lax Act. I would, therefore, accept this revision for failure to comply with the statutory requirements of the rule and set aside the impugned order in this respect and remand the case to the assessing authority to proceed afresh in accordance with the law.

As regards the revision of the State, the only point urged before me relates to the rate of tax chargable in respect of the taxable turnover amounting to Rs. 1,90,000/ -. The learned Dy. Commissioner has held that this turnover is chargeable at 4%, but the contention of the learned Govt. Advocate is that in view of the Notification No. F. 5 (23)E&t/61/i, dated 9. 3. 1961, the assessee is liable to tax at the rate of 5% in respect of this turnover.

In this connection, he has invited my attention to State of Rajasthan Vs. Shriram Laduram (1966 RRD 382), wherein I had an occasion to examine the impact of the Rajasthan Sales Tax (Amendment) Act, 1966 and came to the conclusion that this Act had retrospective effect and would govern the tax rate in respect of the goods referred to therein retrospectively.

The learned counsel for the assessee has in reply referred to firm Chaturbuj Rikhabdas vs. The State of Rajasthan (ILR 1958 Raj. 947 ). A perusal of this case shows that it does not in any manner help the assessee. The question which arose in this case was whether the assessing authority could himself review his own order in the light of the subsequent amendment of the Act. It was held that he could not do so. It was observed that there was nothing in the Ordinance No. 3 of 1965 and the subsequent Act. No. 36 of 1965 to suggest that assessment which had already been made would also be reopened because of the amendment of sec. 10 (5) of the Rajasthan Sales Tax Act although the same was retrospective in operation. It was held that in the absence of a specific provision to that effect, the amendment would not touch assessment which had already been made. Consequently, the learned Judges held the proceedings that took place culminating in the order of the 8th December, 1956, to be invalid and restored the order of the 17th of May, 1956 observing that this order must stand until it is set aside by proper proceedings under the sales tax law.

It transpires that subsequently the Commissioner Excise and Taxation, in exercise of his revisional jurisdiction suo moto under sec. 14 of the Act came to the conclusion that the petitioner was not entitled to rebate exceeding Rs. 798/14/- (as had been held by the assessing authority by his second order which was quashed by the High Court) Accordingly, therefore, the Commissioner again reduced the amount of rebate to this extent. The petitioner, thereupon made a reference to the High Court under sec. 15 (3) of the Rajasthan Sales Tax Act attacking the order of the Commissioner. Having examined the history of the case and duly taking into consideration their previous order, the learned Judges held that the Legislature had expressly laid down that the amendment shall be deemed always to have been substituted and that it was abundantly clear that the amendment to take effect retrospectively. In this view of the matter, the learned Judges held that it could not be said that the Commissioner had committed any mistake in revising the order of the Sales Tax Officer dated 17. 5. 56 (See RRD 1963 p. 209 ).

As it happens, in the present case, the revision was still pending and the case was not closed when the amendment came through.

As discussed by me in the case of M/s. Shriram Laduram, the intendment of the Legislature is very clear and I fail to see how the assessee can escape the rigour of this amendment.

In the result, therefore, I accept the revision petition filed by the State also and direct that the assessee may be taxed accordingly. .

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