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TMI Blog1991 (7) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were not sold within the State and thus there was breach of declaration. Therefore, the Sales Tax Officer levied purchase tax and also imposed penalty of Rs. 7,500 under section 45(1) of the Act. The Sales Tax Officer also imposed penalty of Rs. 64,500 by invoking the provisions of section 45(5) of the Act which provides for penalty in cases where the dealer did not pay the amount of tax, without reasonable cause, within the time prescribed for payment. 2.. The dealer preferred appeal against the said order. The Assistant Commissioner of Sales Tax removed the penalty under section 45(5) of the Act. However, the Assistant Commissioner found that the amount of tax paid was less than 80 per cent of the tax assessed. Therefore there was deemed failure to pay tax as per the legal fiction created under section 45(6) of the Act. Hence he exercised his suo motu powers under section 67 of the Act and ordered to issue notice in prescribed form No. 49 and which also contained a gist of the order proposed to be passed. It was proposed to levy a penalty of Rs. 27,263.10 under section 45(6) of the Act. The representative of the assessee who received the notice made an endorsement on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t removing the entire In favour of the penalties under section 45(1) and 45(6) of the Gujurat Revenue and Sales Tax Act, 1969, by applying the principle laid down against the by the Gujarat High Court in the case of Hemchandbhai assessee. Co. v. State of Gujarat [1982] 50 STC 274? 6.. The fact that there was breach of declaration contained in form 19 was not in dispute. Therefore the provisions as regards penalty were attracted. The Sales Tax Officer had invoked the provisions of section 45(5) (failure to pay amount of tax, without reasonable cause, within time prescribed) of the Act and had imposed penalty of Rs. 64,500. While hearing the appeal, the Assistant Commissioner of Sales Tax found that the penalty under section 45(5) of the Act could not have been levied. However, he found that the dealer had failed to pay 80 per cent of the amount of tax and thereforetherewasdeemedfailuretopaythetaxalongwithreturn. In other words more than 20 per cent of the amount of tax was not paid by the dealer and therefore the provisions of section 45(6) were attracted. However, this power of suo motu revision could be exercised by the Assistant Commissioner of Sales Tax under the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horised representative is imaginary. It is based on facts non-existing. It is also contrary to facts. Whether the assessee had challenged the levy of purchase tax is not at all a relevant circumstance for determining the nature of consent. 9.. It is true that the Assistant Commissioner of Sales Tax has not in his order expressly referred to the consent having been given by the authorised representative of the assessee. But while passing the order, the Assistant Commissioner of Sales Tax is conscious about the notice having been given to the assessee and an opportunity of being heard having been afforded to the assessee. The very fact that while passing the discretionary order, the Assistant Commissioner has assigned no reason except the circumstance that notice under form No. 49 has been issued and thereafter the decision to remit penalty has been taken, indicates that it is consent and only the consent given by the assessee which has weighed with the Assistant Commissioner. Otherwise it would have been incumbent upon the Assistant Commissioner of Sales Tax to give reasons for reducing the penalty. He has just referred to the notice and the fact that opportunity of being heard ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and raised either by the Revenue or by the assessee, as the case may be. However, this would not be necessary where the finding is as regards the jurisdictional facts. 12.. In the instant case, the finding arrived at by the Tribunal is that the consent given is only as regards the legal aspect and not on facts of the order. The Tribunal could have exercised the jurisdiction only if the consent was limited or confined to the legal aspect. This question relates to jurisdictional facts. Determination of jurisdictional facts is a question of law. Unless question relating to jurisdictional facts are decided, the Tribunal cannot exercise its jurisdiction. This is the reason why the Tribunal has also negatived this contention while drawing the statements of facts. In our opinion, in this case, a question of law did arise as the exercise of jurisdiction depended upon the finding of facts. In view of this position, the contention that no question of law arises or that the finding of fact arrived at by the Tribunal cannot be disturbed has no merits and has got to be rejected. 13.. We have already indicated that the finding of fact arrived at by the Tribunal is based on facts non-existing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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