- (1.) THIS is a special appeal under sec. 14 (4a) of the Rajasthan Sales Tax Act against the judgment pronounced by a Single Bench of this Board on 29th June, 1972 in case No. 459/63/revision/s. T. Act/nagaur.
(2.) FOR the purposes of deciding the present special appeal, the following information about she case is relevant. The petitioner's Assessing Authority made an assessment order on 4-11-1967 in respect of the assessment year 1965-66 and 1966-67. The dealer filed quarterly state-ments for three quarters of the year 65 66. He did not file the 4th quarterly statement for that year and he did not file any of the four quarterly statements for the year 1966-67. He deposited on 21 8-1965 a sum of Rs. 2095. 46 against tax. The Assessing Authority asked the dealer's Munim to furnish reasons for not filing the other statements and not depositing tax. The explanation given by the Munim did not find favour with the Assessing Authority who imposed a penalty of Rs. 1945/-under sec. 16 (1) (b ). Contending that the imposition of penalty for failure to pay tax for the period for which the prescribed quarterly statements had not been furnished, was not justified by the relevant provisions of law namely sec. 16 (1)b) and sec. 7 (2), the dealer filed an appeal in the court of the learned Deputy Commissioner Appeals. The appeal was rejected; the learned Deputy Commissioner observing that the dealer was required to deposit the tax within 21 days from the close of the preceding month and the Assessing Authority was justified in imposing a penalty under sec. 16 (1) (b), because tax had not been paid within the time allowed. The dealer-petitioner prayed to the Board to revise this order invoking the provisions of sec. 14 (2), but the learned Member who heard the revision, declied to interfere with the decisions of the Assessing Authority. The petiti-oner dealer has now come in this special appeal. At the Bar it was urged by the petitioner's authorised representative that the decision of the Hon'ble Supreme Court in the case, "state of Rajasthan vs. Ghasilal" reported as 1965 S. T. C. Vol. XVI page 318 and the decision of this Board in the case of "m/s Bhati Marble Works v/s. State of Rajasthan" reported as 1972 Tax Reporter Volume V1 page 209 are authorities for the view that a penalty under sec. 16 (l) (b) cannot be imposed on a dealer, if he has not furnished the prescribed quarterly returns for the tax leviable for the quarter to which such prescribed return relates and the Assessing Authority has not, proceeding under sec. 10, assessed the dealer's liability to tax. We find the same plea had been made before the learned Member of this Board who sitting singly passed the impugned order on 29th June, 1972. The learned Member concluded that the authority cited by the petitioner's representative did not help in the circumstances of the present case, because the petitioner had submitted a consolidated return for the accounting year 25-10-1963 to 12-11-1966 and, therefore, knew the tax that was payable by him for this period. In the opinion of the learned Member, the petitioner could not, because of this consolidated return take advantage of the ruling cited by him, because in the opinion of the learned Member, the rulings helped a petitioner only if such petitioner did not know the amount payable by him as tax. The Assessing Authority has not in his order anywhere said that any consolidated statement was filed and we do not find anything on the record before us to verify the correctness of the information given to the learned Member that such a consolidated statement had been filed. We, however, feel that it is not necessary to ascertain whether any consolidated return was or was not filed, because at the hearing it was urged that even if such a statement is assumed filed, the position would remain unaltered, because the law does not prescribe the filing of such a consolidated statement; the provisions of sec. 7 are not attracted and hence the decision of this Board in the case of M/s Bhati Marble Supplies works based as it is on the Supreme Courts judgment in Ghasilal's case would apply. From the Government side it was contended that rule 25c read with sec. 7 shows that a consolidated statement is a prescribed statement within the meaning of sec. 1 and should be accompanied by a Treasury receipt showing the deposit of the full amount of tax due on the basis of such return. We have carefully examined the provisions of rule 25c and sec. 7 and do not find anything therein to justify the view that a consolidated statement of this type is covered by rule 25c and is the statement envisaged by sub-sec. (2) of sec. 7. In sub-sec. (2) of sec. 7, the words are - "every such return". The use of these words indicates that the return envisaged by sub-sec. (2) is the prescribed return mentioned in sub-sec. (1) of sec. 7. The returns required by sec. 7 are prescribed by rule 25, which prescribes for quarterly returns and does not anywhere prescribe for a consolidated return. Hence even if a consolidated return had been filed as alleged, the petitioner would not be liable under sec. 10 (1) (b) as it stood at the relevant time (sec. 16 (1) (b) was deleted by Act No. XI of 1969) because sub-sec. (2) of sec. 7 did not make it mandatory for the petitioner to furnish a treasury receipt showing the deposit of the full amount of tax due on the basis of this consolidated return. Penalty under sec- 16 (l) (b) could not have been imposed, therefore, in respect of the quarter during the assessment year 1965-66 for which a quarterly statement was not filed and no penalty could have been imposed under this sec. 16 (1) (b) in respect of the assessment year 1966-67 because the prescribed returns were not filed by the dealer in respect of any of the quarters of this assessment year and the Assessing Authority had not, proceeding under sec. 10, assessed the dealer's liability to tax. The penalty of Rs. 1445/-was imposed by the Assessing Authority for both the assessment years and is inclusive of the penalty for the five quarters for which in the above view of the matter penalty could not have been imposed. The Assessing Authority should, in our opinion, be directed to take the above observations into consideration and decide the quantum of penalty afresh excluding these five quarters. The special appeal is, therefore, accepted. The impugned order is set aside and the assessment order is modified so far as it relates to the imposition of the penalty under sec. 16 (1) (b) and the case remanded to the Assessing Authority for re-determining the petitioner's liability to the payment of penalty in respect of the three quarters for which returns had been filed but the full amount of tax not paid and excluding the five quarters for which prescribed returns had not been filed. Another important point which has to be decided before we part with the case and which arose out of the objection taken by the learned authorised representative for the State, is regarding maintainability of this special appeal. Pleading that the decision of this Board reported as 1972 RRD 307 (c) is an authority for the view that only question relating to jurisdiction can be raised in a special appeal, it was urged that the present special appeal must fail, because the impugned judgment has not been shown to be bad on account of an error relating to jurisdiction. We find one of us was a party to the above judgment which we have again considered. We are unable to accept the view that a court hearing a special appeal under Sales Tax Act is required to confine itself to question relating to jurisdiction. The observation in the above judgment apparently seems to have arisen on account of the misunderstanding that the scope of a revision under Sales Tax Act is co-terminus with the scope of a jurisdiction under the Rajasthan Tenancy Act or the Rajasthan Land Revenue Act or the Civil Procedure Code. The jurisdiction of court hearing a petition for revision under any of the three enactments mentioned in preceding sentence is undoubtedly limited. The court can only see whether an error relating to the question of jurisdiction has been committed. The court sitting in revision would interfere under these Acts only if it is satisfied that the court whose judgment is impugned, has failed to exercise jurisdiction vested in it or exercised jurisdiction not vested in it or committed a material irregularity or illegality in the exercise of jurisdiction. The scope of revision under sec. 14 of the Sales Tax Act is wider than that of a revision under the above three Acts. Sec. 14 (1) empowers the Board to pass such order as it thinks fit after examining the records of any proceedings if it considers that the impugned order is illegal or improper or erroneous. Sub-sec. (2) of sec. 14 which applies to revisions by dealers does not also restrict the scope of examination of the proceedings of the lower court to the question relating to jurisdiction. We are, therefore, of the opinion, that the remark in 1972 RRD 307 (c) does not stand in the way of holding this special appeal maintainable notwithstanding the fact that the impugned judgment has been attacked on a ground other than a question relating to jurisdiction. ;