- (1.) THIS is a revision against the order of the Dy. Commissioner, Sales Tax (Appeals) Jodhpur dated the 7th September, 1963.
(2.) THE brief facts of the case are that the Sales Tax Officer, Jodhpur City, while assessing the sales tax of the petitioner for the period 1. 11. 59 to 20. 10. 60 imposed a penalty of Rs. 300/- under rule 21 of the Central Sales Tax (Rajasthan) Rules read with sec. 9 (3) of the Central Sales Tax Act for delay in payment of tax. THE petitioner went in appeal before the Deputy Commissioner, Sales Tax (Appeals), Jodhpur who dismissed the appeal observing that the penalty has been rightly imposed due to contravention of sub-secs. (b) and (c) of sec. 16 of the Rajasthan Sales Tax Act. Having felt aggrieved by this decision of the Deputy Commissioner, Sales Tax (Appeals), Jodhpur dated 7. 9. 63, the petitioner has come up in revision before the Board of Revenue. The learned counsel for the petitioner has argued that composite penalty under-secs. (b) and (c) of sec. 16 could not be imposed. His contention is that unless the assessment is done, no tax is due and as soon as the assessment was done, the tax was deposited without any delay. In support of his contention he has cited S. T. C. 1965 p. 318 in which their lordships of the Supreme Court have observed that sec. 3 of the Rajasthan Sales Tax Act, 1954, which is the charging section read with sec. 5 creates the liability to pay the tax. But till the tax payable is ascertained by the Assessing Authority under sec. 10, or by the assessee under-sec. 7 (2), no tax can be said to be due within sec. 16 (1) (b), for till then there is only a liability to be assessed to tax and there can be no breach of sec. 16 (1) (b ). The learned counsel for the State has conceded that the order of the Sales Tax Officer is not maintainable under sec. 16 (1) (b) but his contention is that it can be inferred from the order of the Sales Tax Officer that the penalty was imposed under sec. 16 (1) (c) and this court in its revisional jurisdiction can impose-the penalty under sec. 16 (1) (c ). I have heard both the counsel for the parties and gone through the entire record. From the perusal of the order of the Sales Tax Officer, it is clear that the penalty was imposed for delay in depositing the tax which is an offence under sec. 16 (1) (b ). The petitioner deposited the tax immediately after assessment. No tax was due to be paid until the assessment was done by the Sales Tax Officer in view of the ruling of the Supreme Court (STC 1965 p. 318) cited by the counsel for the petitioner above. Hence no penalty can be imposed under sec. 16 (1) (b) on the petitioner. The Government Advocate has also conceded that the order of the Sales Tax Officer is not maintainable under sec. 16 (1) (b); and I do not see any reason to impose a penalty under sec. 16 (1) (c) when it has not been done so by the Sales Tax Officer. The revision authorities cannot take over the functions of the Sales Tax Officer. I, therefore, accept the revision and set aside the order of the Deputy Commissioner, Sales Tax (Appeals), Jodhpur dated 7. 9. 63 and of Sales Tax Officer, Jodhpur dated 27 3-63 to the extent of imposing the penalty of Rs. 300/-on the petitioner. .;