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TMI Blog1974 (12) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... od was covered by the 1959 Act. It is unnecessary to refer to the contents of the notice in respect of the period 1st April, 1954, to 31st December, 1959 (which period is hereinafter referred to as "the first period"), inasmuch as this reference is concerned only with the levy of penalty in respect of the period 1st January, 1960, to 12th December, 1961 (which period is hereinafter referred to as "the second period"). It is common ground that the notice in respect of the second period was in form 27 to the Bombay Sales Tax Rules, 1959, made under the 1959 Act, and both the learned counsel have addressed to us arguments on the footing that this was the notice which was issued to the respondents and served upon them. Under the said notice the respondents were called upon to show cause why they should not be assessed in respect of the second period and further to show cause why a penalty under clause (a) of subsection (2) of section 36 of the 1959 Act should not be imposed upon them. On 14th May, 1963, the said Sales Tax Officer passed two assessment orders, one in respect of the first period and the other in respect of the second period. Under the first order the Sales Tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts but to prosecute them under section 63 of the 1959 Act and, therefore, it was not open either to him or to his successor-in-office thereafter to levy penalty upon the respondents. This point too found favour with the Tribunal. Arising from the aforesaid judgment of the Tribunal, the following question has been referred to us: "Whether, having regard to the facts and circumstances of the present case, the Tribunal was justified in law in coming to the conclusion that the officer succeeding the officer who passed the assessment order and who did not levy penalty under section 36(2)(a) of the Bombay Sales Tax Act, 1959, is not entitled to levy penalty under the aforesaid sub-section?" In order to appreciate the real nature of controversy between the parties it is necessary to set out the relevant provisions of the 1959 Act. The material provisions of section 36 of the 1959 Act, as in force at the relevant time, were as follows: "36. (2) If, while assessing the amount of tax due from a dealer under section 33, it appears to the Commissioner that such dealer(a) has wilfully failed to apply for registration as required by section 22............ the Commissioner may, after givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity of being heard. Thereafter under the said section the Commissioner (that is, by virtue of the delegated powers referred to above, the Sales Tax Officer), is to impose upon the dealer by way of penalty, in addition to any tax assessed under section 33, a sum not exceeding one and one-half times the amount of the tax. The reference in the said section to the Commissioner is to the particular office. It is not to a particular individual holding that office. Similarly, substituting the words "Sales Tax Officer " for the word "Commissioner" in the said sub-section, it would only refer to the office of the particular Sales Tax Officer having jurisdiction over the matter. It cannot and does not refer to the individual officer who has either issued the notice or assessed the amount of tax. Under the 1959 Act notices are to be given to a dealer for various purposes. For instance, a notice may be given to a dealer under sub-section (3) of section 33 where the Commissioner (that is, by virtue of the delegated powers referred to above, the Sales Tax Officer) is not satisfied that the returns furnished by a dealer in respect of any period are correct and complete and where the Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty, we have thought it necessary to set out our reasons why we consider the Tribunal to have been wrong in arriving at its decision rather than rest our decision on the concession of counsel. The other point which found favour with the Tribunal, namely, that the Sales Tax Officer had exercised his discretion not to levy penalty, has again been decided on a misconception of the scheme of the Act. The admitted facts are that no penalty was levied in the assessment order in respect of the second period because the Sales Tax Officer felt that this was a case which justified a prosecution of the dealer. Accordingly he recommended to the Commissioner of Sales Tax to grant a sanction for prosecution of the dealer. It appears that the Commissioner, however, felt that in this particular case sanction should not be granted. Had the Commissioner granted the sanction and a prosecution been initiated by reason of the provisions of section 36(5) and section 63(3) of the 1959 Act, no penalty could have been thereafter levied upon the dealer, but what these subsections refer to is the institution of a prosecution, not merely the desire of an officer, who has no power to institute a prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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