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TMI Blog1972 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... returns had been submitted by that time as also in regard to some earlier years. The assessee on the same date gave a bank draft for Rs. 10,000 and stated that the amount of tax payable by it may be realised out of it and that a sum of Rs. 4,200 may be adjusted as penalty for the year 1959-60. Acting upon the said statement the Sales Tax Officer issued a notice to the assessee to show cause as to why a penalty may not be imposed for the year 1959-60 under section 15-A of the U.P. Sales Tax Act (hereinafter called the Act). Approval was also sought for imposition of penalty from the Commissioner, Sales Tax, who granted the necessary approval for imposition of penalty of Rs. 4,200 for the year 1959-60. The Sales Tax Officer, after hearing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been urged by the learned counsel for the assessee that unless the proceedings for assessment for the relevant year were finalised the Sales Tax Officer had no jurisdiction to impose any penalty even if it is accepted for the sake of argument that the quarterly returns contained inaccurate particulars of turnover. It was also urged that since no penalty could be imposed before a final order of assessment was passed, the statement of the assessee on the basis of which the penalty had been imposed was of no consequence and it could not be treated as a material for imposing penalty at that stage. On the other hand, the learned standing counsel submitted that under sub-clause (b) of section 15-A(1) of the Act penalty could be imposed at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer and a notice of demand was issued to pay the additional tax assessed. On the failure to comply with the said notice proceedings for imposition of penalty were started. This case too, therefore, does in no way advance the submission made by the learned standing counsel. The learned counsel for the assessee, on the other hand, has placed reliance upon a Full Bench decision of this Court in I.C. House v. Sales Tax Officer [1971] 28 S.T.C. 231; A.I.R. 1971 All. 251., wherein construing the provisions of rule 41(3) of the U.P. Sales Tax Rules, which applies to a provisional assessment, it has been held that so far as the provisional assessment is concerned the assessing authority has limited jurisdiction. He can determine the turnover to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the U.P. Sales Tax (First Amendment) Rules, 1972, lays down that these Rules shall come into force with effect from the date of their publication in the Gazette. As already noticed above, the Rules were published in the U.P. Gazette, Extraordinary, dated 19th April, and hence cannot be applied retrospectively to the facts of the instant case. It would thus appear that under the Rules as they stood at the relevant time the question as to whether the return submitted by the assessee contained correct particulars of the turnover or the said particulars were inaccurate could fall for consideration of the assessing authority only at the time of passing the order of assessment at the end of the year. It was not open to the assessing authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis supplied.) A perusal of section 15-A of the Act makes it clear that the quantum of penalty to be imposed under either of the three sub-sections of the said section is dependent upon the tax payable by the dealer. Unless an order of assessment is passed, which could be passed only at the end of the year and not after every quarter, the tax payable could not be determined. In Income-tax Officer v. Firm Madan Mohan Damma Mal[1968] 70 I.T.R. 293., it was held: "Since penalty has to be calculated and then imposed according to the tax assessed, the penalty being proportionate to the tax, the imposing of penalty must necessarily follow the assessment. The question of imposition of penalty thus arises after the assessment has been compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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