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TMI Blog1991 (6) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee replied and pleaded critical financial condition for non-payment of the amount of tax. The Sales Tax Officer did not accept the plea raised by the assessee-firm and imposed penalty of Rs. 33,601 under the provisions of section 45(6) of the Act. Since the assessee-firm failed to pay the tax due and also contravened the provisions of rule 31 of the Gujarat Sales Tax Rules, 1970 (hereinafter referred to as "the Rules"), it was prosecuted for the quarters ended September 30, 1974, December 31, 1974 and March 31, 1975, as provided under rule 78 of the Rules. The concerned Metropolitan Magistrate at the conclusion of the trial convicted the assessee-firm and imposed a fine of Rs. 200 on each count. 3.. The assessee-firm filed appeal before the Assistant Commissioner of Sales Tax against the order of penalty imposed by the Sales Tax Officer. In appeal the assessee-firm failed. The matter was carried before the Tribunal where also the assessee-firm failed. Thereafter the assessee submitted an application for making reference to this Court. The Tribunal has drawn the statement of facts and as per its order dated February 3, 1983, has referred the following five questions for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by a decision of this Court in the case of Shri Laxminivas Brijlal Rungta v. O.C. Shah, Assistant Commissioner of Sales Tax (Administration), Ahmedabad (Special Civil Application No. 42 of 1964 decided on December 1, 1964). Therein identical provisions of the Bombay Sales Tax Act, 1959, came up for consideration. After examining the relevant provisions of the said Act, this Court came to the conclusion that even though the prosecution was launched for the contravention of the provisions of the rule in question, penalty could be imposed under the relevant provisions of the Act. In view of the fact that the question is already covered by the decision of this High Court, we do not think it necessary to give further reasons. 5.. Question No. 2: The Tribunal has rightly distinguished the decision of the Supreme Court in the case of Commissioner of Sales Tax v. Radhakisan [1979] 43 STC 4. In the appropriate provisions of the sales tax law applicable in the State of Madhya Pradesh, there was separate provision for the levy of penalty for the failure to pay tax in time. There was also alternative provision for prosecution for such failure. The constitutional validity of these pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dealer has failed to pay the whole of the amount of tax as required by sub-section (2) of section 47 or the whole of the extra amount of tax as required by sub-section (3) of that section or where in the case of a dealer, the amount of tax assessed or reassessed for any period under section 41 or section 44 exceeds the sum already paid by a dealer in respect of such period prior to such assessment or reassessment by more than twenty per cent of the sum so paid, the dealer shall be deemed to have failed to pay the tax to the extent of the difference between the amount payable as aforesaid and the amount paid and the dealer shall pay by way of penalty on the amount of difference a sum calculated in accordance with the provisions of sub-section (5) and the provisions of sub-section (5) shall, so far as may be, apply thereto;" On a bare reading of the aforesaid provisions it is evident that the provisions of section 45(6) were attracted inasmuch as the assessee had failed to pay the whole of the amount of tax as provided under section 47(2) of the Act. Section 47(2) as it then existed reads as follows: "47(2). A registered dealer furnishing declarations or returns as required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be pleaded as a reasonable cause for not making payments due to a public authority." In his submission, by this proposition, the Tribunal has stated that in no case financial stringency can be advanced as a reasonable cause for not making the payment due to the public authority. However, if the aforesaid sentence is read in the proper context, it would be clear that the Tribunal has not laid down the aforesaid proposition as a proposition of law of universal applicability. The Tribunal had pointedly asked the learned counsel for the assessee as to whether the assessee had collected the amount of tax on the relevant sales made by it to its customers. The learned counsel for the assessee was not in a position to state as to whether the amount of tax was so collected or not. Therefore, the Tribunal inferred that as per the normal business practice the amount of tax would have been collected on sales by a dealer. Therefore it was inferred that in failing to pay the tax due in time, the assessee-firm was making use of the money already collected by way of tax from its customers for its business purposes. Thereafter, the Tribunal stated as follows: "Be that as it may, financial s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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