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TMI Blog1995 (2) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 36(2)(c), Explanation (1) to penalty under section 36(2)(c), Explanation (2) of the Bombay Sales Tax Act, 1959?" 2.. The facts of the case relevant for determination of the controversy in this case are as follows: The assessee, M/s. Malbar Products, is a dealer registered under the Bombay Sales Tax Act, 1959 ("the Act") and carries on the business of manufacture, sale and supply of desiccated coconuts. This reference pertains to the period November 12, 1977 to October 31, 1978. The assessee did not submit his returns for this period within the prescribed time. They were filed belatedly. The return for the quarter ending February 7, 1978, was furnished on March 17, 1978, for the quarter ending May 6, 1978 on June 16, 1978, for the quarter ending August 3, 1978 on September 14, 1978 and for the quarter ending October 31, 1978 on January 6, 1979. All these returns were accepted and taken on record by the Sales Tax Officer. On January 9, 1981, after two years of the furnishing of the above returns, the Sales Tax Officer issued a notice to the assessee in form 27 requiring him to produce evidence in support of his returns. In the above notice, it was also stated that all the four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (3) or (4) thereof. It was contended by the assessee that Explanation (1) to section 36(2)(c) would be applicable only to cases where assessment had been made under sub-section (3) or sub-section (4) of section 33 of the Act. The case of the assessee before the Tribunal was that in the instant case, as the returns had admittedly been furnished beyond the prescribed date, the assessment made by the Sales Tax Officer was in effect an assessment under sub-section (5) of section 33 of the Act and Explanation (1) to section 36(2)(c) did not apply to such assessment. According to the assessee, the deeming provision contained in Explanation (1) to section 36(2)(c) was applicable only to an assessee who had submitted his returns within the prescribed date and not to those who failed to do so. The Tribunal accepted the above contention of the assessee and held that the assessment of a dealer who had filed his return late or did not file the return at all, would be an assessment under sub-section (5) of section 33 which did not fall under Explanation (1) to section 36(2)(c). The Tribunal, therefore, held that the penalty levied by the Sales Tax Officer with the aid of Explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such conditions as may be prescribed, and for reasons to be recorded in writing, assess the tax due from any dealer during a part of a year: Provided further that, when a registered dealer fails to furnish any return relating to any period of any year, by the prescribed date, the Commissioner may, if he thinks fit, assess the tax due from such dealer separately for different parts of such year. (2) If the Commissioner is satisfied that the returns furnished by a registered dealer in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. (3) If the Commissioner is not satisfied that the returns furnished by a registered dealer in respect of any period are correct and complete, and he thinks it necessary to require the presence of the dealer or the production of further evidence, he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his returns, or to produce such evidence as is specified in the notice. On the date specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 32 read with rule 22 of the Rules. Section 32(1) of the Act merely requires every registered dealer to furnish the return within the prescribed time. Failure to do so is visited with penal consequences. In fact, under section 63(1)(c) of the Act, as it stood at the material time, failure without sufficient cause to furnish any return as required by section 32, by the date and in the manner prescribed, is an offence punishable with simple imprisonment and fine. This also shows that return can be filed even after the prescribed time. Moreover, there is no prohibition in section 32 of the Act or rule 22 of the Rules against filing of returns after the prescribed date. Hence, returns filed after the expiry of the prescribed date have also to be considered by the assessing authorities as valid returns while making assessment under section 33 of the Act and, depending upon the facts of the case, assessment has to be made under either of the three sub-sections, viz., subsections (2), (3) and (4). No assessment can be made under sub-section (5) in such a case. Resort to sub-section (5) would be necessary only where no return for any period is furnished within the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the amount of tax due from a dealer under any provisions of this Act or while passing any order in any appeal or revision proceedings, it appears to the Commissioner that such dealer- ................... (c) has concealed the particulars of any transactions or knowingly furnished inaccurate particulars of any transaction liable to tax; the Commissioner may, after giving the dealer an opportunity of being heard, by order in writing, impose upon the dealer by way of penalty, in addition to any tax assessed or reassessed or found due in the appeal or revision proceedings as the case may be, a sum not exceeding one and one-half times the amount of the tax. Explanation.-(1) Where a dealer furnishing returns has been assessed by the Commissioner under sub-section (3) or (4) of section 33, or assessed under sub-section (3) of section 41, or reassessed under clause (b) of sub-section (1) of section 35, or in whose case an order has been passed under section 55 or clause (a) of sub-section (1) of section 57, and the total amount of tax paid by the dealer for any year is found to be less than eighty per cent of the amount of tax as so assessed or reassessed or found due in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officer to ignore these returns and to seek to assess the applicants as if no returns had been filed. The position in law is clear and obvious and no authority is required in support of it." 13.. In the above decision, this Court also referred with approval the decision of the Madras High Court in Bata Shoe Company Private Limited v. Joint Commercial Tax Officer [1968] 21 STC 135. That is a case under the Madras General Sales Tax Act, 1959 ("the Madras Act"). Section 12 of the Madras Act was similar to section 33(5) of the Bombay Act. With reference to section 12 of that Act, the Madras High Court observed that there is no provision in the Madras General Sales Tax Act, 1959, which forbids the filing of the returns after the prescribed time, or which forbids returns filed belatedly being considered by the assessing officer in the assessment proceedings. It was held that "the whole object of sub-section (2) is to provide for two contingencies: (1) Where a return has not been filed within the prescribed time and (2) where one is filed and it is in the opinion of the assessing officer incorrect or incomplete. In either of these cases the jurisdiction of the officer to assess by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn, the assessees were assessed by the assessing authority and called upon to pay tax. The assessment was made on August 2, 1973. It was barred by limitation if it was an assessment under sub-section (1) of section 14 but it would be within time if it was held to be an assessment under section 14(3). The Andhra Pradesh High Court on consideration of the scheme of section 14 of the Andhra Act, observed (at page 152): "The real question, therefore, is whether the dealer failed to submit a return and the assessment was made by the assessing authority to the best of his judgment under section 14(3) of the Act. In this case, undisputedly, the assessees submitted a return. It was no doubt not submitted within the due date. Can a belated return be treated as a case of no return or, in other words, a case where the dealer failed to submit the return? We do not think it can be said that there is no return at all when a return is submitted even after the prescribed time. There is no provision in the statute which forbids the filing of a return after a prescribed time or which forbids a return filed belatedly being considered by the assessing officer." 15.. In the light of the foregoing d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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