Gulati, J. - (1.) THE petitioner is a licenced dealer under the U.P. Sale of Motor Spirit Diesel Oil and Taxation Act, 1939 (hereinafter referred to as the Act). Under Section 3 of the said Act every dealer has to pay a tax on the retail sale of motor spirit and diesel oil at specified rates, The tax for each month is payable by the end of the succeeding month. For the month of August, 1974 tax was pay able by September 30, 1974. That day happened to be a holiday. So the petitioner deposited the tax on the following day. Sub-section (2) of Section 3 provides that if tax is not paid within the time pres cribed, the Prescribed Authority may in lieu thereof recover any sum "not exceeding double the amount of tax so unpaid, or any smaller sum above the amount of tax which such authority may think rea sonable to recover. This means that a maximum penalty for non payment of tax can be equal to the tax itself so that a defaulting dea ler has to pay in lieu of the unpaid tax an amount equal to double that amount.
(2.) THE District Magistrate, Farrukhabad, who is the Prescribed Authority levied a penalty for non-payment of tax for the month of August equal to double the amount of tax. This is clear contrary to the provisions contained in sub-section (2) of Section 3 of the Act. That apart, the petitioner, in our opinion, is not liable to penalty at all. The last day of limitation for the payment of tax fell on a holi day and under Section 10 of the General Clauses Act if the last day of limitation falls on a holiday that day is to be excluded and the limitation automatically extend to the next working day. Section 10 reads as under: - "10. Computation of time.-Where, by any (Uttar Pradesh) Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescrib ed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open." This being the law the District Magistrate was clearly wrong in hold ing the petitioner a defaulter and levying penalty on him.
(3.) THE petitioner also committed default in the payment of tax for the month of November. - The tax for the month of November had to be paid by the end of December, next. The petitioner paid the tax on January 8. So clearly the petitioner was in default for a period of 8 days. The learned counsel does not dispute that the petitioner became liable to penalty for non-payment of tax within the prescrib ed time. The District Magistrate has levied a penaly equal to twice the amount of tax. This clearly is wrong. As we have pointed out above already sub-section (2) of Section 3 permits only a penalty equal to the amount of tax so that the total amount payable by a per son in default cannot exceed twice the amount of tax including the penalty. Rule 10 no doubt authorises the levy of penalty equal to twice the tax. This rule clearly is ultra vires the substantive pro visions of Section 3(2) of the Act. So this rule has to be ignored. This proposition is supported squarely by a decision of this court in M/s. Mana Service Station, Chhutmalpur v. Excise Commissioner, U.P. and another Civil Misc. Writ No. 5616 of 1973, decided on September 10.;