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TMI Blog1970 (2) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1963. On 28th of January, 1963, further penalty was imposed to the tune of Rs. 23,248 under rule 16(2). On 29th of September, 1963, the Assistant Commissioner of Sales Tax set aside the orders of the Sales Tax Officer and remanded the assessment proceedings for further examination and reassessment. On 25th of February, 1964, revisions were filed before the Commissioner. A prayer was made that as there was no reassessment, the payment of the penalty should be stayed and the orders of penalty should be quashed. In March, 1966, the revisions were dismissed by the Commissioner. On 28th of March, 1966, this writ application was filed for quashing the orders of penalty and for refund of Rs. 18,500 paid towards tax and for vacating the attachment of some of the properties. 2.. In S.J.C. Nos. 58 to 62 of 1965 we have delivered our judgment on 11th of February, 1970, in-between the same parties. In paragraph 4 of our judgment the facts of the case have been clearly stated. In short, the facts are: Initially the Sales Tax Officer assessed the petitioner on a finding that there was an inter-State sale between the petitioner and Jalaram Trading Company. The Assistant Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipted challan in proof of payment of such amount by a date also to be specified in the said notice: Provided that in the cases of continuing default the penalty may be levied in instalments from time to time so however as not to exceed onehalf of the total amount of tax due: Provided further if collection of the sum specified in the notice of demand in Form VII or any part thereof has been stayed on appeal or revision, penalty may be levied if the sum is not paid and proof of such payment is not produced before the Sales Tax Officer within a fortnight after the expiry of the stay period. Explanation.-Where stay of collection until disposal of appeal or revision has been ordered, the stay period shall be deemed to have expired on the date of disposal of such appeal or revision and where in such cases, the appeal or revision results in a reduction or increase in the sum demanded, a revised notice of demand in Form VIII will issue and no penalty shall be levied until expiry of the time-limit specified in the said revised notice. 17.. Recovery of tax from a defaulting dealer.-If on the date fixed under rule 16 the defaulting dealer has not paid the amount due or such instal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revision results in a reduction or increase in the sum demanded, a revised notice of demand in Form X will issue and no penalty under section 13(5) shall be levied until expiry of the time-limit specified in the said revised notice." 6.. A bare comparison of the analogous provisions would show that the schemes in both the Central Sales Tax Act and the Orissa Sales Tax Act are the same. There is no corresponding provision in the Income-tax Act regarding the explanation. Mr. Mohapatra places reliance on a decision in Dwarika Prasad Sharma v. State of Orissa and Others[1965] 16 S.T.C. 144., wherein a Bench of this court held that prior to the amendment of section 13 of the Orissa Sales Tax Act, 1947, by Ordinance I of 1964, the levy of penalty for failure to pay the amount originally assessed within the time prescribed by law, which was valid at the time the order of penalty was passed, could not subsequently become void merely because the order of assessment was set aside on appeal by the Tribunal and the proceedings were remanded for reassessment. This decision clearly supports the contention of Mr. Mohapatra. Mr. Ray drew our attention to the decision in Income-tax Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le laid down in Dwarika Prasad Sharma v. State of Orissa and Others(1) should be extended in its application to an imposition of penalty under the Orissa Rules. 8.. Apparently the contention is attractive, but on a closer scrutiny it is without force. The explanation merely enunciates the elementary law. It says in the first instance that where stay is granted the dealer will not be deemed to have been in default. Even without the explanation such is the legal position both in civil law and in any taxing statute. Even under the Income-tax Act once assessment is made and demand notice is issued, the assessee would be in default if the amount is not paid on the date fixed unless a stay order has been procured from the appellate authorities. Absence of a corresponding provision in the Income-tax Act therefore does not make any difference. Under the Sales Tax Act if there is a default, penalty would accrue. Same is the provision under the Income-tax Act. The explanation further clarifies the position that the stay would stand automatically vacated on the date of the disposal of the appeal. Same is also the position in civil law as well as under the Income-tax Act. It is not also disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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