9911796707
TMI Blog1986 (9) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner is liable to registration under section 16(1)(a) read with section 6(1) of the Act. The petitioner filed an appeal before the Revenue Appellate Authority, which was accepted and the order of the A.C.T.O. (respondent No. 2) was set aside. The department, however, filed a revision which was accepted by the Board of Revenue for Rajasthan vide its order dated 29th November, 1982. The appellate order of the Deputy Commissioner (Appeals) (Revenue Appellate Authority) was set aside and the order given by respondent No. 2 was maintained. Aggrieved against this order, the petitioner presented an application for reference to this Court and the Board of Revenue referred the following question to this Court for its opinion: "Whether under the facts and circumstances of the case, fresh fruit juice was within the entry No. 2(a) of the Schedule to the Act, i.e., fresh fruits." However, respondent No. 2 after the decision of the Board of Revenue compelled the petitioner to deposit the penalty under section 16(1)(a) of the Act along with registration fee. The registration fee was deposited by the petitioner on 4th March, 1983. The petitioner was treated as a registered dealer und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the respondents, has frankly conceded that fresh fruits are not liable to any sales tax under the Act. He has, however, contended that fresh fruit juice is not covered by entry 2(a) of the Schedule appended to the Act and, therefore, the petitioner has been held to be a dealer liable to registration w.e.f. the year 1972, when he has started this business of selling fresh fruit juice. He has submitted that the A.C.T.O. (respondent No. 2) had no power to grant exemption to the petitioner from the levy of penalty under section 7AA of the Act and to grant the petitioner the relief relating to interest under section 11B of the Act was a mistake apparent on the face of the record and, therefore, respondent No. 2 (A.C.T.O.) issued the notices exhibit 5 to exhibit 7 dated 28th July, 1985, to show cause why penalty and interest be not levied against him. Mr. N.S. Acharya, learned counsel for the petitioner, has submitted that under section 17 of the Act, an order can be rectified by the assessing authority if it is proved that there exists any mistake apparent on the face of the record. In this case, no mistake is apparent on the face of the record. Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the principles laid down by the Supreme Court in Haji Lal Mohd. Biri Works' case [1973] 32 STC 496 (SC) that the liability to pay interest was automatic and arose by operation of law and it was not necessary for the assessing authority to specify the amount of interest in the recovery certificate as it was not possible to specify a definite figure in respect of interest in the recovery certificate till the arrears of sales tax were paid, shall be equally applicable to the payment of interest under the Rajasthan Sales Tax Act. Mr. K.C. Bhandari, learned counsel for the respondent, has, therefore, submitted that so far as the interest is concerned, respondent No. 2 had full authority to issue such notices. He was perfectly within his jurisdiction to issue the notices. Mr. Bhandari has, however, conceded that he cannot support the respondents so far as the levy of penalty is concerned because the levy of penalty is a discretionary matter and when the A.C.T.O. has exercised his jurisdiction in a particular manner, no mistake apparent on the face of the record appears to be existed in the case and, therefore, Mr. Bhandari did not press his point so far as the levy of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 7 is not paid within the period allowed or if the amount specified in any notice of demand, whether for tax, fee or penalty, is not paid within the period specified in such notice or in the absence of such specification, within 30 days from the date of service of such notice. It is not the case of the respondents that the amount of tax was not deposited within the time prescribed in the notice. Rather, it has been frankly conceded that the amount of tax assessed was paid within the prescribed time mentioned in the notice. It is also not the case of the respondents that the tax has not been paid according to the provisions of section 7(2) and (2A) of the Act. What has been contended by Mr. K.C. Bhandari, learned counsel for the respondents, is that according to the decision of the Board of Revenue, the petitioner ought to have got himself registered as a dealer in the year 1972 and ought to have filed the returns from the year 1972. As he has failed to do so, the fact that he has been registered on 5th March, 1983, does not absolve him from the levy of interest from the date the tax became payable and due from the petitioner. Actually section 11B as it existed at the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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