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TMI Blog1973 (6) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... defaulter in order to attract the penalty contemplated under sub-section (2) of section 13 of the Act. In order to appreciate the said contention, the relevant facts may be stated briefly and it is sufficient if we state the facts of the case in W.P. No. 1232 of 1972, which relates to the period from 1st April, 1965, to 31st January, 1966. The petitioner-assessee opted under the Act for filing quarterly returns. The quarterly returns are due within one month from the end of each quarter. For the first quarter ending on 30th June, 1965, the petitioner submitted his return on 30th July, 1965, and the tax computed on the turnover amounted to Rs. 36,939.18. The said amount of tax was paid on 3rd September, 1965. Before the payment of the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner failed to pay the penalty amount within seven days from the date of receipt of the memo. Aggrieved by the action of the first respondent, the petitioner has preferred the above writ petitions for relief under article 226 of the Constitution. The question for decision is whether the petitioner became a defaulter within the meaning of the term under section 13(2) of the Act. Section 13 of the Act provides for payment and recovery of tax. Sub-section (1) of section 13 states that the tax under the Act shall be paid in such manner and in such instalments, if any, and within such time, as may be prescribed. Sub-section (2) provides that if default is made in making payment in accordance with sub-section (1), the dealer is liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing authority shall serve upon the dealer a notice in form 3 and the dealer shall pay the sum demanded together with the penalty due under sub. section (2) of section 13 calculated on the said sum from the day immediately following the date on which the return was due within the time and in the manner specified in the notice." Sub-rule (2) of rule 21 provides that a dealer shall submit his return so as to reach the assessing authority within 30 days after the close of the quarter showing the total and taxable turnovers for the preceding quarter and the amount actually collected by him by way of tax during that quarter. It further provides that a dealer shall along with the return submit a receipt from a Government treasury or a receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not accompanied by payment of the admitted tax. Following rule 18 which is in pari materia with rule 21, notices of demand were served on the assessee on 17th November, 1960, requiring him to pay the balance tax due within 21 days from the date of service of the demand notices. The tax demanded was paid on 13th December, 1960. On 17th December, 1960, the Commercial Tax Officer called upon the assessee to pay the penalty said to have been incurred as a result of his failure to pay the tax due on the due dates, viz., the dates on which the returns were due. This court held that reading rule 18 as a whole, an option was given to the assessee to pay the tax admittedly due from him either along with the returns or within the time specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not disputed that the petitioner has paid the tax demanded within the time specified in form 3 notices and, therefore, he did not become a defaulter. In respect of the quarters for which no demand notices were issued in form 3, the petitioner did not become a defaulter. When the petitioner was not a defaulter at all he does not incur penalty under sub-section (2) of section 13 of the Act notwithstanding the provisions under rule 21(4b) empowering the exaction of such penalty. In our opinion, the words "together with the Penalty due under sub-section (2) of section 13 calculated on the said sum from the day immediately following the date on which the return was due" in rule 21(4b) are ultra vires of the Act. Since the said rule has now ..... X X X X Extracts X X X X X X X X Extracts X X X X
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