S.B.Sinha, J. - (1.) This application is directed against a judgment and order dated 21.6.2000 passed by the West Bengal Taxation Tribunal in case No. R.N. 30 of 2000, whereby and whereunder the application filed by the petitioners herein questioning an order imposing penalty purported to be in terms of the provisions of the West Bengal Sales Tax Act, 1994 (hereinafter referred to and called for the sake of brevity as the 'said Act') was dismissed.
(2.) The fact of the matter is as follows :- A notification was published in the Extraordinary Gazette on 13.4.95 whereby and whereunder rules were framed in terms of the provisions of the said Act known as West Bengal Sales Tax Rules, 1995. The said rule was made by the State in exercise of its power under section 104 of the West Bengal Sales Tax Act. Rule 3 of the said Rules provides for delegation of power subject to certain restrictions as specified therein by the Commissioner. At Serial No. 27 of the Table appended below the rule it has been provided that the power of imposing penalty in terms of section 76 of the said Act, shall not be delegated by the Commissioner on any officer below the rank of Commercial Tax Officer. The power and/or authority to issue such a notice is derived from his satisfaction that the dealer should be proceeded in terms of sub-section (1) of section 76 so as to be entitled to impose penalty. Such a power has been conferred upon the Deputy Commissioner. The petitioner is a registered dealer. An order was passed by the Commissioner, Commercial Taxes in terms of section 3(4) of the said Act read with Rule 3(1) of the said Rules delegating amongst others the powers under section 76 to impose penalty upon a dealer for concealment of sales or any particulars thereof, or of submission of incorrect statement of turnover of purchase or sales or purchases in the return with an intent to reduce the amount of tax payable by him to the Deputy Commissioner, Commercial Taxes and other authorities, by a notification dated 22.9.95.
(3.) A raid was conducted in the office of the petitioner No. 1 on 27.7.97 in course whereof certain documents were seized from his custody. Relying on or on the basis thereof, notice were issued against the petitioners purported to be under section 65 of the said Act and pursuant thereto various investigations were started with a view to ascertain as to whether there had been any evasion of tax. The respondent No. 5 herein issued a notice on 18.5.98 for imposing penalty for the period ending on 31.3.97. After giving an opportunity of hearing to the petitioners, the impugned order imposing penalty to the tune of Rs. 32,54,842.98 was passed by the said authority on 23.10.98, whereafter a notice in Form 51 demanding the amount of penalty was issued. An order of assessment imposing interest on the tax due to the petitioner No. 1 was passed on 21.12.98. The petitioners complied with the said order. According to the petitioners, although the goods were imported without permit the said purchases were all duly recorded in its books of accounts. However, books of accounts and documents were looked into after seizure by the central section whereafter the petitioners were made aware of the correct position by the investigating officer whereupon the petitioners immediately paid all taxes along with interest on the definite and firm assurance by the concerned officer that if such amount was immediately paid no penalty would be levied. In April 1999, documents seized from the petitioners on 27.7.97 were returned. The petitioners filed a revisional application before the respondent No. 3, who by reason of an order dated 24.12.99 reduced the quantum of penalty. As against the said order, the learned Tribunal was moved in terms of section 8 of the West Bengal Taxation Tribunal Act, 1987. The said application was marked as R.N. No. 30 of 2000 wherein in interim order was passed. In the meantime, a notification was issued on 1.4.2000 amending Rule 236 where the assessing authority only had been notified to be competent to impose by penalty in terms of section 76 of the said Act. Thereafter, the impugned order has been passed.;