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2010 (2) TMI 1072 - HC - VAT and Sales TaxWhether on the facts and circumstances of the case and on true and correct interpretation of the provisions in section 55 of the Bombay Sales Tax Act 1959 the Tribunal was justified in holding that the order passed by the Appellate Deputy Commissioner levying for the first time the penalty under section 9(2A) of the Central Sales Tax Act 1956 read with section 36(3)(d) of the Bombay Sales Tax Act 1959 was passed in the second appeal in exercise of the powers under section 55 of the Bombay Sales Tax Act 1959? Whether on the facts and circumstances of the case and on true and correct interpretation of section 36(3)(c) of the Bombay Sales Tax Act 1959 the Tribunal was justified in holding that the order passed by the Appellate Deputy Commissioner levying for the first time penalty under section 9(2A) of the Central Sales Tax Act 1956 read with section 36(3)(d) of the Bombay Sales Tax Act 1959 was not an original order passed in exercise of the powers under section 36 of the Bombay Sales Tax Act 1959? Whether on the facts and circumstances of the case and on true and correct interpretation of the provisions in section 55 of the Bombay Sales Tax Act 1959 the Tribunal was justified in holding the appeal against penalty levied for the first time by the Appellate Deputy Commissioner as a third appeal and in dismissing it on the ground of its being not maintainable? Held that - In the present case admittedly penalty was not levied initially at the time of passing the assessment order but the same was levied by the Deputy Commissioner of Sales Tax (Appeals) in the second appeal. Plain reading of section 55(6)(b) of the BST Act 1959 shows that the appellate authority may confirm or cancel the order against which the appeal is preferred or vary it so as to either enhance or to reduce the penalty. Thus the Deputy Commissioner of Sales Tax (Appeals) erred in levying the penalty for the first time in appeal. The order passed by the Deputy Commissioner of Sales Tax (Appeals) dated December 4 1999 imposing penalty on the applicant for the first time in exercise of appellate powers is erroneous and without authority of law. In favour of assesse.
Issues Involved:
1. Jurisdiction of the Appellate Deputy Commissioner to levy penalty for the first time in appeal. 2. Interpretation of section 55(6)(b) of the Bombay Sales Tax Act, 1959. 3. Maintainability of the third appeal against the penalty levied for the first time by the Appellate Deputy Commissioner. Issue-wise Detailed Analysis: 1. Jurisdiction of the Appellate Deputy Commissioner to Levy Penalty for the First Time in Appeal: The primary issue was whether the Appellate Deputy Commissioner had the jurisdiction to levy a penalty for the first time during the appeal process. The applicant argued that the appellate powers under section 55(6) of the BST Act, 1959, allow the appellate authority to cancel, enhance, or reduce interest but do not grant the power to impose a fresh penalty. This argument was supported by the apex court's judgment in Food Corporation of India v. Commissioner of Sales Tax, M.P., which held that an appellate authority cannot impose a penalty for the first time unless explicitly empowered by statute. The court concluded that the Deputy Commissioner erred in levying the penalty for the first time in appeal, as there was no specific provision granting such power. 2. Interpretation of Section 55(6)(b) of the Bombay Sales Tax Act, 1959: Section 55(6)(b) of the BST Act, 1959, was scrutinized to determine whether it allowed the appellate authority to levy a penalty for the first time. The section states that the appellate authority may "confirm or cancel such order or vary it so as either to enhance or to reduce the penalty." The court interpreted this to mean that the appellate authority could only deal with penalties already imposed by the assessing authority and did not have the jurisdiction to impose a penalty for the first time. This interpretation was consistent with the principles laid down in previous judgments, such as Food Corporation of India v. Commissioner of Sales Tax, M.P., and supported by the statutory framework. 3. Maintainability of the Third Appeal Against the Penalty Levied for the First Time by the Appellate Deputy Commissioner: The final issue was whether a third appeal was maintainable against the penalty levied for the first time by the Appellate Deputy Commissioner. The Tribunal had dismissed the appeal on the grounds of non-maintainability, considering the penalty order as not an original order but one passed in the second appeal. However, the court held that the appeal was indeed tenable against the order imposing the penalty for the first time. The court emphasized that the right to appeal is a statutory creation, and the order passed by the Deputy Commissioner in the second appeal did not achieve finality as it was erroneous and without authority of law. Conclusion: The court concluded that the Deputy Commissioner of Sales Tax (Appeals) erred in levying the penalty for the first time in appeal, as there was no statutory provision granting such power. The interpretation of section 55(6)(b) of the BST Act, 1959, supported this conclusion. Consequently, the appeal against the penalty order was maintainable. The reference was disposed of in favor of the applicant, with no order as to costs.
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