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TMI Blog1986 (2) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... Flying Squad and during the raid certain incriminating documents, i.e., registers, lease papers, loose bills, passes issued to the truck drivers for transport of material, etc., were seized. 5.. The Sales Tax Officer of the Flying Squad on the basis of the seized documents estimated the sales for the year 1980-81 at Rs. 4,37,119.65 and that for the year 1981-82 at Rs. 61,298.00 and recommended for assessment. 6.. On the basis of the best judgment assessment under section 18 of the Act, the taxable turnover was assessed at Rs. 4,50,000 for the period 1980-81 and Rs. 2,30,000 for the period 28th October, 1981 to 23rd April, 1982 and as such penalty of Rs. 30,000 under section 43(1) of the Act for concealment of the turnover income and for the period 1980-81 an amount of Rs. 15,000 was imposed. Similarly, penalty under section 17(3) of the Act for not furnishing return in time for first default Rs. 125 and for second default Rs. 1,500 was also imposed by the Sales Tax Officer, Bilaspur, by his two separate orders dated 31st March, 1983, against which the petitioner, instead of preferring appeals, filed revisions before respondent No. 2 who by his orders dated 23rd April, 1984 (an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department again issued a memo dated 19th October, 1982 asking him to appear on 27th November, 1982. This memo was received by the father of the proprietor, Shri Jwala Prasad on 21st November, 1982. On this date Babulal's real brother Dayanand who was also acting as his manager, appeared and took a date for 27th December, 1982, stating that his brother Babulal had gone to Delhi. On 27th December, 1982 the proprietor himself appeared and took a last chance for filing explanation against the show cause notice. The case was again adjourned for 31st December, 1982. On this date neither he appeared nor did he send any intimation. The department again by affording sufficient opportunity issued a fresh show cause notice on 31st December, 1982 and fixed the case for 18th January, 1983 on which date the proprietor appeared and again took time and then the case was adjourned to 3rd February, 1983. Again, on 3rd February, 1983 the proprietor remained absent. However, the department again issued a show cause notice fixing the case for 23rd March, 1983, but the same was received unserved and, therefore, the department repeated the notice for 31st March, 1983. This notice was received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to point out any legal impediment to this effect that penalty under both the provisions could not be imposed. Section 17(3) of the Act lays down: "17. Returns.-(1) ........................... (1-A) ........................ (2) ........................ (3) If- (a) a dealer fails without sufficient cause to comply with the requirements of a notice issued under sub-section (1); or (b) a registered dealer.......... *Words in Hindi are transliterated in English. (c) a registered dealer fails to furnish return, the Commissioner may, after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty- (i) in the case referred to in clause (a), in addition to any tax payable by him a sum not exceeding fifty rupees for each occasion of default, subject to a maximum of five hundred rupees in each case; (ii) in the cases referred to in clause (b).................. (iii) in the case referred to in clause (c), a sum not less than 15 per cent and not exceeding 35 per cent of the tax assessed." Section 43(1) of the Act runs thus: "43. Power of Commissioner or appellate authority to impose penalty.-(1) If the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlal Ramcharan v. Sales Tax Officer, Circle Bhopal [1978] 41 STC 459, that both the provisions, i.e., section 17(3) and section 43(1) of the Act are attracted mutatis mutandis in the case of imposition of penalty. Therefore, in our opinion, there is no substance in the argument that under both the provisions, penalty could not be imposed simultaneously, or, since the return is not filed, therefore, no penalty could be imposed under section 43(1) of the Act. 17.. Lastly, it contended that transport charges have been wrongly included in the total turnover. The learned counsel submitted that according to the definition of "sale price" given in section 2(o) of the Act, at the relevant time, the transportation charges when charged separately in the bills, the same cannot be included in the sale price of the goods (gitti) and hence, the freight charges had to be excluded from the sale price of gitti. It is further submitted that the delivery of the metal was given at the stone-crusher site, for which the rate was much lower and thereafter it was transported to its destination at purchaser's cost. But, in assessment the rates of sale have been adopted inclusive of transport charges, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made a very emphatic statement that no opportunity of being heard was afforded to him before the Sales Tax Officer, whereas the record demonstrates that full opportunity was given, but he deliberately avoided to appear before the Sales Tax Officer. For invoking extraordinary jurisdiction of this Court under articles 226 and 227 of the Constitution of India, it is a fundamental principle that one should come with clean hands without suppressing the material and relevant facts and also not to make false statement on oath and if such things are discovered at the time of the final hearing, then, not only the petition deserves to be dismissed but also, in such circumstances, the petitioner makes himself liable to be prosecuted for making false statement on oath, which is, in law, receivable as evidence. 21.. In the instant case, as stated earlier, the proprietor of the petitioner-firm is the author of making false statements on oath in the petition and his statements, as stated, are wholly false and inspired by vexatious motive. Therefore, in such a case deterrent action is warranted. However, we think that instead of directing proprietor Babulal Agarwal's prosecution, awarding of e ..... 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