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TMI Blog1980 (2) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to show cause why penalty be not levied upon it. The petitioner is a joint-stock company, registered under the Indian Companies Act and owns ginning and pressing factory at Kesrisinghpur, District Sri Ganganagar. During the assessment year 1st April, 1961, to 31st March, 1962, the assessee purchased cotton within Rajasthan giving a declaration in form S.T. 17 under rule 25C of the Rajasthan Sales Tax Rules that it would be resold within the State of Rajasthan. However, in contravention of the declaration, the assessee transferred part of the cotton to their godowns outside Rajasthan and also sold it outside Rajasthan. The assessing authority levied purchase tax on all these transactions and also imposed a penalty under section 16(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to get these sales excluded from his taxable turnover by virtue of the provisions of section 2(s)(iii) of the Rajasthan Sales Tax Act, 1954." The reference was decided by this Court on 19th December, 1969 (annexure 4). This Court observed as follows: "In the Act or the Rules as they stood till 26th March, 1962, there was no provision for recovery of any purchase tax on cotton from the purchaser, who makes a declaration, which subsequently turns out to be wrong. So no tax could be recovered from the assessees on the cotton purchased by them in respect of which they filed the above declaration. Only a penalty could be levied under section 16(1)(g) the limit of which was prescribed at Rs. 100." The operative part of the order reads thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion amounted only to a statement of law and no direction has been given to the Board to reopen the matter regarding imposition of penalty. It has therefore been submitted that the direction given by the Board to the assessing authority to issue notice to the assessee for imposition of penalty was without jurisdiction. It has also been urged that the Deputy Commissioner (Appeals) had considered the question of imposition of penalty on merits and had held that no case for imposition of penalty had been made out. On the other hand, Mr. S.C. Bhandari, the learned counsel for the department, has urged that the writ petition should be thrown out on the ground of laches. It is submitted that the impugned order was passed by the Board as far bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under section 33 and the final decision in the appeal can therefore be given only after the disposal of the reference. Thus, it appears to us that there was nothing to prevent the assessee to ask for a reference in respect of a question of law arising out of the impugned order by the Board. The assessee could have got a reference made on the point, whether in the facts and circumstances of the case, the Board was justified in directing the assessing authority to pass a fresh order in the light of the judgment of the High Court dated 19th December, 1969, but the assessee did not do so, and allowed the proceedings to be resumed by the assessing authority who gave a show cause notice to the assessee. It is true that the question of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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