9911796707
TMI Blog1990 (7) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... selling hair-oils, tooth-powder and ayurvedic medicines, etc. The company was holding Registration No. Ind/1/XXIV/322 granted by the Sales Tax Officer, Circle-1, Indore, under the M.P. General Sales Tax Act. 3.. The assessment and penalty order-annexure 1 was made by the Additional Assistant Commissioner of Sales Tax, Indore (respondent No. 5) by his order dated September 30, 1986. The respondent No. 5 levied a penalty of Rs. 65,000 under section 45-B of the Act. 4.. The petitioner's case before the respondent No. 5, the Additional Assistant Commissioner of Sales Tax, was that he had appointed stockists and dealers who purchased the goods. It is a trade practice that incentive bonus is given at the close of the year on the basis of tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed tax in accordance with the provisions of the Act, and being a registered dealer was authorised to collect the tax. He did not contravene any provisions of the Act. 7.. The crucial question that arises for consideration is whether the collection as made by the petitioner was in contravention of any of the provisions of the Act or Rules made thereunder, so as to attract the second clause of section 45-B of the Act. The Board has placed reliance on its own order dated April 28, 1986 in Appeal No. 129-IV-185. Shri Garg, learned counsel for the petitioner referred to 1986 C.T.S. 485, wherein the same Board has held as follows: "Whether the tax was collected unauthorisedly is a matter to be decided on the final conclusions and findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TC 182 (SC); AIR 1961 SC 1047) (Commissioner of Sales Tax v. Modi Sugar Mills Ltd.). 9.. Section 45-B of the Act, reads as follows: "Section 45-B. Collection of tax by dealers.-(1) No person other than a registered dealer or a person who is deemed to be dealer who has failed to apply for registration under the provisions of clause (b) of subsection (11) of section 15 or sub-section (7) of section 16-A shall collect any amount by way of tax under this Act and no collection of tax shall be made except in accordance with the provisions of this Act and the Rules made thereunder. (2) If any person collects any amount by way of tax in contravention of the provisions of sub-section (1), he shall be liable to pay a penalty not less than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Subject to the provisions of subsections (2) and (3) the tax payable by a dealer under this Act shall be levied on the taxable turnover relating to goods specified in Schedule II at the rate mentioned in corresponding entry in column 3 of the said Schedule." 13.. The petitioner, in para 7 of the petition, has made a specific averment to the effect that there was no dispute that the petitioner collected tax in accordance with the Schedule II. The respondents, in their reply to this averment, have contended in their return: "It is admitted that the petitioner had collected sales tax as per rate mentioned in Schedule II." They however qualified this admission by saying that "the collection exceeds the tax that is found ultimately pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate or rates in excess of that specified in respect of the sale or purchase of the goods; section 18-A is not attracted where section 18 is not contravened. Where on the individual transaction of sale or purchase, the dealer under section 18(1) collects amounts in excess of the rate or rates specified under the Act or, where he purports to collect amounts by way of tax, where there is no tax charged on the transaction under the Act, section 18(1) is contravened, which attracts the penalty provision of section 18-A. Where sub-section (1) of section 18 is not contravened, even though the aggregate amounts collected on all the transactions of the dealer during the accounting period exceed the tax chargeable on the total turnover of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd simple. Even while penalty imposed by the respondents that the petitioner's collection was in accordance with the Schedule and whether such a penalty can be maintained, that is a short question involved in this petition. 19.. What is to be seen is whether the petitioner made collection of tax in a manner except in accordance with the provisions of the Act and the Rules made thereunder? In face of the admission made by the respondents, as noted above, there is absolutely no justification for imposition of the penalty, as done by the respondents. 20.. For the foregoing reasons this petition deserves to be allowed it is accordingly allowed with costs. Counsel's fee Rs. 1,000 (one thousand) if certified. Order annexures 3, 4 and 5 are qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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