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TMI Blog1984 (11) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ut these appeals were dismissed. The respondent filed two second appeals to the Tribunal being Second Appeals Nos. 229 of 1967 and 230 of 1967. The Second Appeal No. 229 of 1967 related to the period 1st April, 1961, to 31st March, 1962, and Second Appeal No. 230 of 1967 related to the period 1st April, 1962, to 31st March, 1963. Both these second appeals were allowed on the ground that the proper procedure for passing an order of forfeiture was not followed by the Sales Tax Officer in so far he had not issued notices in form 29 as required by law. Thereafter, the Sales Tax Officer concerned issued notices in form 29 to show cause why forfeiture order should not be passed, and after hearing the respondent, the Sales Tax Officer passed orders forfeiting the excess collections of tax represented by the aforesaid amounts. The first appeals preferred by the respondent against these decisions were dismissed. The respondent then filed two second appeals before the Sales Tax Tribunal. In these second appeals, the Tribunal took the view that the forfeitures relating to the period prior to 15th July, 1962, were bad in law, inasmuch as the second part of sub-section (2) of section 46 was ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was placed on section 46, it would violate the provisions of article 20 and would become invalid. In view of this it should be interpreted and if necessary, read down so as not to confer on the Sales Tax Officer any power to levy forfeiture where it would not have been open to him to do so prior to 15th July, 1962. The second submission of Mr. Patel was that in any event the order of forfeiture is invalid and illegal in view of the provisions of section 27 of the said amending Act. 4.. Before considering the rival submissions of the learned counsel which we have set out earlier, it would be useful to take note of certain relevant provisions of law. Section 46 of the said Act contains a prohibition against collection of tax in certain cases. The material portion of that section for the purposes of this reference runs as under: "46. (1) No person shall collect any sum by way of tax in respect of sales of any goods on which by virtue of section 5 no tax is payable. (2) No person, who is not a registered dealer and liable to pay tax in respect of any sale or purchase, shall collect on the sale of any goods any sum by way of tax from any other person and no registered dealer sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence in respect of anything done or omitted to be done by him, before the date of commencement of this Act, if such act or omission was not an offence under the Bombay Sales Tax Act, 1959, but for the amendments made by these sections; nor shall any person in respect of such act or omission be subject to a penalty greater than that which could have been inflicted on him under the law in force immediately before the date of such commencement." 5.. It is clear on perusal of sub-section (2) of section 46 that there is a prohibition against a registered dealer from collecting any amount by way of tax in excess of the amount of tax payable by him under the said Act. Under the provisions of sub-section (1) of section 37, as it stood, the said amount was liable to be forfeited. This was by reason of the retrospective amendment of section 46(2) as we have set out earlier. The question which we have to consider is whether giving such effect to the retrospective amendment would violate the provisions of article 20 of the Constitution, as suggested by Mr. Patel. It is clear, on a plain reading of the said provisions, that if retrospective amendment is to be given to the amended portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of sub-section (2A) inserted in section 9 of the Central Sales Tax Act, as aforesaid. One of the grounds on which the said provision was challenged was that as the provision validated penalties levied prior to the coming into force of the amending Act it was violative of article 20(1) of the Constitution of India. It was held by the Supreme Court that the word "penalty" used in article 20(1) of the Constitution could not be construed as including a penalty levied under the sales tax laws by the departmental authorities for violation of statutory provisions. A penalty imposed by the sales tax authorities was only a civil liability, though penal in character. It was held that the protection given in article 20 was a constitutional protection given to persons who were charged with a crime before a criminal Court and did not confer any protection against penalties levied under the sales tax laws by the departmental authorities for violation of statutory provisions, which, as aforesaid, were only civil liabilities. The reasoning accepted by the Supreme Court in this case clearly applies also to a penalty imposed under sub-section (1) of section 37 of the said Act for a breach of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence whereas in section 27 of the amending Act, the point of time referred to is the date of the commencement of the amending Act. This, however, in our view, does not make much difference because the language of section 27 is substantially similar to the language employed in clause (1) of article 20. A perusal of the amending Act makes it clear that certain amendments were retrospectively made by the amending Act in the Bombay Sales Tax Act, 1959, and in view of this, it is clear that the intention of the legislature in enacting section 27 was to protect these retrospective provisions from the challenge of article 20. It is true that if the word "penalty" used in section 27 of the amending Act could be reasonably interpreted so as to include even a penalty imposed by a departmental authority, such an interpretation would be normally accepted by a Court. Considering, however, the background of the legislation and the clear purpose for which that section was enacted, it would not be reasonable to give an interpretation to the term "penalty" used in section 27 so as to include therein a departmental penalty which as pointed out constitute civil liability although penal in charac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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