N.K.JAIN, J. - (1.) A Division Bench of this Court vide order dt. 22.8.77 has referred the matter to the Board of Revenue to frame the following question of law to be referred to the High Court: Whether on the facts and circumstances of the case the Board of Revenue was justified in holding that no penalty was leviable on the assessee under Section 46(1)(b) of the Rajasthan Sales Tax Act, 1954.
(2.) BRIEF facts of the case are that the A.C.T.O., Pali for the assessment Year 1966 -67 and 1967 -68 of the period 25.10.65 to 2.11.67 assessed the assessee M/s. Mahaveer Timber Mail and passed the assessment order Under Section 10(3) and imposed penalty for late filing return Under Section 16(1)(c) and also imposed penalty Under Section 16(1)(b) on 27.12.1968. The assessee preferred an appeal before the Dy. Commissioner (Appeals), Jodhpur challenging interalia the penalty imposed. The Dy. Commissioner (Appeals) accepted the appeal on 4.12.1969 holding that the tax was not determined Under Section 7(2) nor Under Section 10 of the R.T. Act and not become due prior to the filing of the returns before the assessment order was passed and penalty was held to be illegal. Being aggrieved, the assessing authority, filed a revision before the Board of Revenue for Rajasthan. The learned Single Member of the Board relying on State v. Ghasilal 1965 (XVT) S.T.C. 318 dismissed the revision vide order 31.12.73 and upheld the order of Dy. Commissioner (Appeals). A special appeal was filed before the Division Bench of the Board of Revenue, Ajmer and the same was dismissed on 16.7.1975. Thereafter the assessing authority moved an application under Section 15(1) of the Act of 10.11.1975 requesting the Board to refer the question to the High Court. The reference application was not decided within 180 days and the application was filed vide order dt. 27.10.76. The assessing authority again moved an application Under Section 15(3A) of the Act before this Court to direct the Board of Revenue to State the case and refer the question, on this, above question was referred. Mr. Mehta, has submitted that the Dy. Commissioner (Appeals) has wrongly relied on State v. Ghasilal reported in 1965 (XVI) S.T.C. 318 while setting aside the penalty Under Section 16(1)(h) of the Act.
(3.) I have heard Mr. B.C. Mehta, learned Counsel for the Revenue and perused the record. The sole proprietor Bhikamchand of the assessee M/s. Mahaveer Timber Mart has expired and a notice to his legal representative was issued but none has appeared despite service.;