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TMI Blog1971 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... r different periods. Miscellaneous Petition No. 388 of 1970 relates to the year 1962-63, No. 387 of 1970 relates to the year 1963-64, No. 73 of 1970 relates to the year 1964-65 and No. 74 of 1970 relates to the year 1965-66. Since the material facts which have given rise to the common point in these writ petitions are the same, we are disposing of all the four petitions by one common order, giving the facts of the first case (M.P. No. 388 of 1970) which relates to the year 1962-63. The facts of the remaining three cases are materially the same except in respect of dates and figures which do not affect the point in question. 2.. Under the Madhya Pradesh General Sales Tax Act, an assessee, who is a registered dealer, has to submit quarterly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections (1) and (3) of section 17 are quoted below: "(1)......Every registered dealer shall furnish returns in such form, in such manner, for such period, by such date and to such authority as may be prescribed." "(3) If................................a registered dealer fails without sufficient cause to furnish under the said sub-section his return for any period, the Commissioner may.........direct him to pay, by way of penalty, a sum not exceeding one-fourth of the amount of the tax which may be assessed............" From the above quotations it will be seen that sub-section (3) of section 17 provides for imposition of penalty in case a return is not filed. In sub-section (1) the manner of filing of the return is provided for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the details mentioned above and the treasury receipted challan, which is merely to accompany the return. The treasury challan is not the return and the failure to submit the challan along with the return cannot possibly amount to a failure to file the return itself. 5.. The matter can be looked at from another aspect also. Section 17 deals with the filing of the return and provides for penalty if the return is not filed, while section 22 deals with the deposit of the tax and provides for penalty in case tax is not deposited under certain circumstances only. Subsection (2) of section 22 requires that tax which is due according to the return shall be deposited before the return is filed. Sub-section (3) provides that in case the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax which, in fact, may never be due and it would be difficult to ascribe to the Legislature the intention of imposition of penalty on an assessee for not having deposited any such over-estimated tax which has not been assessed and found due. In the case under consideration, it has already been mentioned that the assessee had estimated his liability of tax at an amount of Rs. 24,524.70, while ultimately he was found liable only to pay Rs. 21,308.89 as tax. Unless a very clear and unequivocal language is used by the Legislature, such a power to impose penalty for not having deposited advance tax cannot be inferred. Penal provisions have to be strictly construed and, if ambiguous, are construed in favour of the assessee. We are therefore cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This argument was accepted by the Madras High Court in two decisions: D.H. Shah and Co. v. State of Madras[1967] 20 S.T.C. 146. and State of Madras v. M. Angappa Chettiar and Sons[1968] 22 S T.C. 226. With due respect to the learned Judges of the Madras High Court who decided those cases, we are unable to agree with this contention. The relevant words of sub-section (3) of section 9 of the Central Act may be quoted: "The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax...." It will be seen that this sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the conclusion that the assessment of penalty was wholly without jurisdiction, we do not agree that those petitions should be dismissed merely on the ground of delay. There is no limitation prescribed for filing a writ petition and imposition of a large amount of penalty certainly affects the fundamental rights of the petitioner. 10.. The result, therefore, is that all the four writ petitions are allowed, the assessment of penalty under section 17(3) in all these cases is quashed and we direct that the amount of penalty so assessed shall not be realised from the petitioner in any of these four cases. The petitioner will get his costs from the respondents in all these cases. Counsel's fee Rs. 100, if certified. The amount of security for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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