9911796707
TMI Blog1972 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... with the copy of the assessment order on 28th March, 1963, requiring the payment of the amount due within a certain time. The assessee did not pay the tax demanded within the time allowed. The Sales Tax Officer, therefore, initiated proceedings for imposing penalty under section 15-A(I)(c) of the Act. A notice was served on the assessee informing him that he was in default and that he should show cause on 2nd July, 1963, why penalty be not imposed upon it. Neither the assessee, nor any one else appeared on its behalf before the Sales Tax Officer on 2nd July, 1963. On behalf of the assessee an application dated 25th July, 1963, was moved before the Sales Tax Officer stating that because the assessee had challenged the rate of tax, there had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty exceeding Rs. 21,763.35. In the result, he reduced the penalty imposed by the Sales Tax Officer from Rs. 24,000 to Rs. 21,763. At the instance of the assessee, the Additional judge (Revisions), Sales Tax, U.P., has referred the following three questions for the opinion of this court: "(1) Whether on the facts and in the circumstances of the case, without giving a further opportunity to be heard and only on the written explanation sent by the dealer in compliance with the show cause notice under the first proviso of section 15-A, the assessing authority could be said to be 'satisfied' judicially that the dealer had failed to pay the tax assessed 'without reasonable cause' in order to give him jurisdiction to impose penalty? (2) Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the time allowed the tax assessed on him, he may direct that such dealer shall pay, by way of penalty.............. Provided that no penalty shall be imposed under the foregoing clause- (i) except after notice to the dealer, and.................. (3) No order shall be made under sub-section (1) unless the dealer has been heard or has been given a reasonable opportunity of being heard.........................." A perusal of this section shows that before a penalty under it can be imposed a notice for the purpose has to be given to the dealer and he has also to be afforded a reasonable opportunity of being heard. The question that arises for consideration, therefore, is whether in this case a notice for the purpose was given and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order. In the circumstances, it cannot be denied that the assessee was given a reasonable opportunity of being heard as required by section 15-A(3). Learned counsel for the assessee argued that the notice issued by the Sales Tax Officer was merely a notice as required by the proviso to section 15-A(1) and not a notice affording an opportunity to the assessee for being heard as required by section 15-A(3) of the Act. We are unable to accept this contention. Sub-section (1) to section 15-A merely requires that no penalty is to be imposed except after notice to the dealer. This means that before imposing penalty the Sales Tax Officer must give a notice to the dealer that he is going to impose penalty as the assessee has defaulted in paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why a penalty under section 15-A should not be imposed upon you." This court took the view that as the notice did not fix any particular date on which the assessee was to appear personally or send his written explanation to the Sales Tax Officer, it could not be said that the assessee was allowed an opportunity of being heard. The Bench pointed out that had the notice fixed a date, it could be argued that on the specific date it was open to the assessee to have appeared before the Sales Tax Officer and to be heard orally, if he so wanted. 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 an oral submission. In the case before us, we find that the Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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