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TMI Blog1971 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause as to why penalty should not be imposed upon it for its failure to pay the tax within the time allowed in that behalf. The assessee submitted a written explanation in which it was stated that the assessee had approached the Government for the grant of instalments for the payment of the arrears of tax, as it was not in a position to pay the whole amount in a lump sum. The assessee further requested for four weeks' time within which to obtain appropriate orders from the State Government. It appears, however, that the assessee did not succeed in obtaining the necessary orders from the State Government and in due course the Sales Tax Officer issued a recovery certificate to the Collector for the recovery of the arrears of tax. By an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity for personal hearing under section 15-A(3) of the U.P. Sales Tax Act? (d) Whether as a matter of law the two notices could be combined in one and the show cause notice dated 6th September, 1961, could be interpreted or treated as a composite notice giving also a reasonable opportunity for personal hearing? (e) Whether in the absence of a demand by the assessee for an opportunity for personal hearing, the legal requirements of the issue of notice for such an opportunity could be deemed to be satisfied? (f) Whether as a matter of law the judge (Revisions) properly understood and applied the rulings reported in 28 I.T.R. 837(2), 30 I.T.R. 565(3) and 36 I.T.R. 140(4)? (g) Whether under the facts and circumstances of the case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly correct view of the representations, explanation and correspondence filed by the assessee before the A.C. (J.) and treated by him as part of the record and dealt with by him in this order? (m) Whether the default, if any, was not merely technical and whether the token penalty would not have met the ends of justice? (n) Whether in the circumstances of the case the quantum of penalty imposed was not excessive, oppressive and unreasonable?" Before proceeding to answer the questions, we may state a few more facts. It appears that the Collector to whom the recovery of tax was entrusted had granted instalments to the assessee. The penalty was imposed by the Sales Tax Officer, while these instalments were being paid by the assessee so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) Whether the quantum of penalty was rightly calculated? We proceed to answer question No. (2) first. Section 15-A so far as it is material for our purposes is as follows: "15-A. Penalty for failure to file returns.-(1) If the assessing authority is satisfied that any dealer............... (c) has without reasonable cause, failed to pay, within the time allowed the tax assessed on him, he may direct that such dealer shall pay, by way of penalty in the cases referred to in clauses (a) and (c), in addition to the amount of tax payable by him, a sum not exceeding 25 per cent. of the tax due if the tax is up to rupees 10,000 and not exceeding 50 per cent. of the tax due if the tax is above rupees 10,000 and in the cases referred to in cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t specifically provide any opportunity of being heard to the assessee. The notice does not fix any particular date on which the assessee may appear personally or send his written explanation to the Sales Tax Officer. It allows the assessee a period of eight days within which to show cause. Obviously such a notice cannot be said to allow an opportunity of being heard to the assessee. Had the notice fixed a date, it could be argued that on the specified date it was open to the assessee to have appeared before the Sales Tax Officer and to be heard orally, if it so wanted. But in the absence of a particular date, it is not possible to say that the assessee could appear before the Sales Tax Officer and make oral submissions. It is true that sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a notice did not fulfil the requirements of sub-section (3) of section 28 and was therefore an invalid notice. In the latter two cases a different view has been taken. It has been held that so long as the assessee was given an opportunity of being heard in person, it did not matter that he was also simultaneously given the option to show cause in writing. It is not necessary to decide as to which of the two views is correct because the notice in those cases was materially different from the notice in the instant case. There the assessee had been given an option to show cause in person on a fixed date but in the notice before us, no such option was given to the assessee. We are, therefore, of opinion that the requirement contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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