- (1.) THIS is a revision application by the dealer under sec. 14 (2) of the Rajasthan Sales Tax Act against an order dated 10-12-68 by the Dy. Commissioner, Commercial Taxes (Appeals) Jodhpur in respect of a penalty of Rs. 380/- imposed in the case of the dealer, M/s. Durga Oil Mills, Jodhpur by the assessing authority by order dated 20-1-1967.
(2.) THE assessing authority had originally imposed a penalty of Rs. 400 for delay in submission of returns. This order was set aside by the Dy. Commissioner (Appeals) by order dated 26-2-66 on the ground that opportunity for being heard had not been given to the dealer in regard to the penalty, as required by Rule 54 of the RST Rules. THE assessing authority thereupon issued a notice, and after hearing the dealer, passed a fresh order imposing a penalty of Rs. 380. On appal the Dy. Commissioner (Appeals) upheld the order. In appeal, as well as before me, the point raised on behalf of the dealer was that if the Dy. Commissioner had intended that fresh action for imposing penalty be taken, he would have given necessary direction in the appellate order. Attention was invited to the provisions of sec. 13 (3) of the RST Act in accordance with which, the appellate authority could either annul the penalty; or set aside the penalty and direct the a assessing authority to pass a fresh order after such further enquiry as may be directed. It was contended that if no direction to pass a fresh order was given, no fresh order could be passed. Before me an Allahbad High Court judgment in an Income Tax matter in "j. K. Cotton Spinning & Weaving Mills Ltd. , vs. Commissioner of Income Tax, U. P. " (I963 XLVII ITR 906) was cited. The judgment contained the observation that the I. T. O. was bound by the directions of the appellate authority given in an order setting aside an assessment order and directing a fresh assessment. The departmental representative stressed the view taken by the Dy. Commissioner (Appeals) in the order, which is the subject matter of the present application, that the earlier order of the Dy. Commissioner did not have the effect of washing away the default or offence. The defect of opportunity for being heard having not been given to the dealer was a procedural flaw and action after curing this flaw was not barred. The argument advanced before me in the light of the provisions contained in sec. 13 (3) has no force. The provision is to the effect that the appellate authority may either annul an order or direct the assessing authority to pass a fresh order, after such further enquiry as may be directed. This, however, does not mean that where no direction for a fresh order after fresh enquiry is given, and a penalty order is annulled due to a procedural defect, no fresh proceedings can be taken after curing the defect. The Allahabad ruling cited also does not help the dealer. It only says that where any directions are given by the appellate authority regarding re-assessment in an order setting aside an assessment order, the assessing authority is bound by the directions. It does not say that where no directions are given, the assessing authority is barred from doing any thing. In fact, the judgment proceeds to say, that subject only to the specific directions, if any, the assessing authority has the same powers in carrying out the fresh assessment as in the case of the original assessment, and can proceed as if he were carrying out an original assessment and can even take fresh materials into consideration. As the penalty order had been set aside on the basis of a procedural deficiency. I agree with the Dy. Commissioner (Appeals) that a fresh order could be passed after adopting the procedure provided for in the law. I, therefore, see no ground to interfere with the Dy. Commissioner's order and reject the revision application. .;