S. K. MAL LODHA, J. - (1.) THIS is an application under s. 15 (3a) of the Rajasthan Sales Tax Act, 1954 (No. XXIX of 1954) (for short 'the R. S. T. Act') read with s. 9 of the Central Sales Tax Act, 1956 (Act No. LXXIV of 1956) (which will hereinafter for the sake of brevity be referred to as 'the C. S. T. Act') for directing the Board of Revenue for Rajasthan ('the Board' herein) to state the case and refer the question of law arising out of its order dated March 26, 1979 passed in Special Appeal No. 6/ 78/st/pali as it failed to dispose of the reference application under s. 15 (1) of the R. S. T. Act within a period of 180 days. The question of law suggested by the Assistant Commercial Taxes Officer (Revisions), Ajmer is as under:- "whether under the facts and circumstances of the case, the Board of Revenue was justified in holding that no penalty can be imposed under section 16 (l) (c) of the Rajasthan Sales Tax Act, 1954 read with Section 9 (2) of the Central Sales Tax Act, 1956 for late filing of returns even after retror-spective amendment of section 9 of the Central Sales Tax Act, 1956, by Amending Act No. 103 of 1976?"
(2.) THE dealer-assessee (non-petitioner No. 1) carries on the business of asbestos cement pipes. THE Assistant Commercial Taxes Officer, Ward A, Pali (Assessing Authority) passed the order dated October 26, 1971 under s. 9 of the C. S. T. Act. It was an assessment- cum-penalty order. In addition to the tax assessed the Assessing Authority imposed a penalty of Rs. 1,400/- on the dealer assessee under s. 16 (l) (c) of the R. S. T. Act read with s. 9 of the C. S. T. Act for not filing the returns of turnover along-with deposit of tax within the prescribed time. THE dealer-assessee filed an appeal. THE Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur by his order dated May 16, 1972 deleted the penalty of Rs. 1, 400/- on the ground that the penalty for late filing of returns as provided by the R. S. T. Act could not be imposed under the C. S. T. Act as there is no such provision for levy of penalty under the C. S. T. Act. He observed in his order as under :- "thus, the assessing authority cannot invoke the provisions of the State Act to levy penalty for offence committed under the C. S. T Act The Assessing Authority filed a revision before the Board. The revision was heard by the Chairman of the Board, who dismissed the revision by his order dated August 7, 1978. He concurred with the view taken by the Deputy Commissioner (Appeals ). A Special Appeal was filed before the Division Bench of the Board. The Division Bench of the Board dismissed the Special Appeal by its order dated March 26, 1979. It held as under:- "thus in 1971 when the penalty was imposed under section 16 (l) (c), unless a penalty was provided in the Central Sales Tax Act for late submission of returns, penalty could not have been imposed and it has been held accordingly by the Deputy Commissioner (Appeals) and the learned Chairman sitting in revision. " The contention raised regarding the amendment of s. 9 (2) of the C. S. T. Act as made by the Central Sales Tax (Amendment) Act. 1976 (Act, No. 103 of 1976) ('the Amending Act' herein ). , the Division Bench observed that this was irrelevant. Subsequently an application under s. 15 (1) was filed. As the application was not disposed of within the period of 180 days, this application under s. 15 (3a) of the R. S. T. Act was submitted on May 12, 1980. In view of the provisions contained in s. 13 (10) of the Rajasthan Sales Tax (Amendment) Act, 1984 (Act No. XX of 1984) (for short 'the Amendment Act' hereinafter) which has come into force from 1st May, 1985 this application which was pending at the time of the commencement of the Amendment Act has been treated as a revision under s. 15 of the R. S. T. Act as substituted by the Amendment Act of 1984. We have heard Mr. K. C. Bhandari, learned counsel for the Assessing Authority. No body has appeared on behalf of the dealer-assessee. The facts regarding which there is no dispute before us and which have been mentioned in the order of the revenue authorities are these :- The penalty was imposed on the dealer-assessee under s. 16 (1) (c) of the R. S. T. Act read with s. 9 of the C. S. T. Act for not filing returns of turnover along-with deposit of tax within the prescribed time. This order was passed on October 26. 1971. There was no provision for levying penalty under the C. S. T. Act as is contained in the R. S. T. Act. S. 9 of the Act deals with levy, collection of tax and penalties. "s. 9 (2a) All the provisions relating to offences and penalties (including provisions relating to the penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in Sections 10 and 10-A) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, re-assessment, collection and the enforcement of payment of any tax required to be collected under this Act in such assessment, re-assessment, collection or enforcement of payment as if the tax under the Act were a tax under such sales tax law. " S. 9 (2a) of the C. S. T. Act makes provisions relating to offences and penalties of the general sales tax law of each State applicable in relation to assessment, re-assessment, collection and the enforcement of the payment of any tax required to be collected under the C. S. T. Act. The references to the terms in sub-s. (2-A) are to be construed to refer to the law as it stands at the time it is sought to be applied with all the changes made from time to time. In other words, the provisions relating to offences and penalties in the State Act as existing on the date when their application is called for, will apply for purposes of the C. S. T. Act. S. 9 of the Amending Act is a validating section and makes the provisions of sub-s. (2-A) of s. 9 inserted by the Amending Act to operate with retrospective effect. It also validates the imposition and collection of penalties levied before the commencement of the Amending Act which were invalid by reason of the Supreme Court in Khemka & Co. (Agencies) Pvt. Ltd. vs. State of Maharashtra (1 ). In view of the provisions of s. 9 of the Amending Act, the imposition of penalty upon the dealers for late payment and non-payment of tax under the C. S. T. Act, prior to the commencement, of the Amending Act, has been validated. The provisions contained in s. 9 2) 9 (2-A) of the C. S. T. Act and s. 9 of the Amending Act, were examined in Shiv Dutt Rai Fateh Chand vs. Union of India 2 ). It was laid down therein that the Amending Act contained, interalia, the validating provisions declaring that the provisions of s. 9, so amended, would have effect and should be deemed always to have had effect in relation to the period commencing from January 5, 1957, as if the section also provided that all provisions relating to penalties of the general sales tax law of each State, with necessary modifications applied in relation to the assessment, re-assessment, collection and enforcement of payment of any tax required to be collected under the C. S. T. Act. Thus, by giving retrospective effect, s. 9 2-A) w. e. f. January 5,1957 in so far as penalties were concerned by enacting sub-s. (l) of s. 9 of the Amending Act, the deficiency pointed out in Khemka & Co. 's case (1) was removed.
(3.) BEFORE a division Bench of the Bombay High Court in Commissioner of Sales Tax vs. Bombay Commercial Traders (3) a question arose whether the provision of s. 36 (3) of the Bombay Sales Tax Act, 1959 could not be imported in the assessments under the C S. T. Act to levy penalty for late payment of central sales tax and such levy of penalty was without the authority of law. The insertion of new sub-s (2a) in s 9 of the C. S. T. Act by the Amending Act was considered. The Division Bench speaking through DP. Madon, J. , as he then was, observed as under :- "section 9 of the Amending Act is a validating section and makes the provisions of sub-section (2a) of section 9 inserted by the Amending Act to operate with retrospective effect. It also validates the imposition and collection of penalties levied before the commencement of the Amending Act which were invalid by reason of the aforesaid decision of the Supreme Court. In view of the provisions of section 9 of the Amending Act, it must be held that the imposition of penalty upon the respondents by the Sales Tax Officer for late payment and non-payment of tax under the Central Act was valid. We accordingly answer the question submitted to us in the negative. " The Bombay Commercial Trader's case (3) was followed in Commissioner of Sales Tax vs. M/s. Bansidhar Devendrakumar (4 ). It was held that after the Central Sales Tax (Amendment) Act, 1976 sub-s. (2-A) has been introduced in s. 9 with retrospective effect, the consequence of this is that the levy of penalty has now been validated. In these circumstances, it cannot be said that the Sales Tax Authorities had no jurisdiction to levy penalty under s. 36 (2) (c) of the Bombay Sales Tax Act. 1959. We are in respectful agreement with the reasons given in Bombay Commercial Traders' case (3) and M/s. Bansidhar Devendra Kumar's case (4) and do not propose to multiply authorities in support of the view taken therein. After the insertion of s. 9 (2-A) in s. 9 of the C. S. T. Act by Amending Act, the penalty imposed under s. 16 (1) (c) of R. S. T. Act by order dated October 26, 1971 passed by the A. C. T. O , Ward. A, Pali stands validated for the late filing of the returns. The view taken by the Board in the revision and the special appeal by its order dated August 7, 1978 and March 28, 1979 is not correct, in the face of the insertion of sub-s. (2-A) in s. 9 of the C. S. T. Act. The penalty was impossible under s. I6 (l) (c) of the R. S. T. Act for not filing the returns within the prescribed time, and that has been validated. ;