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TMI Blog1995 (2) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the limitations provided under section 33(4A) of the Bombay Sales Tax Act are applicable to the levy of such penalty?" 2.. The assessee, who is a registered dealer under the Central Sales Tax Act, 1956 ("the Central Act"), was assessed by the Sales Tax Officer, Thane, under section 9(2) of the Central Act read with section 33(3) of the Bombay Sales Tax Act, 1959 ("the Bombay Act" or "the Act') for the period January 1, 1969 to December 31, 1969, vide his assessment order dated July 30, 1977. In the above order of assessment, it was observed: "Action to levy penalty under section 36(3) (of the Bombay Sales Tax Act, 1959), read with section 9 and under section 9(2) (of the Central Sales Tax Act, 1956), read with section 36(2)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the quantum of penalty. The Assistant Commissioner did not accept the contention of the assessee that once the order of penalty is set aside by the appellate authority, the Sales Tax Officer cannot pass a fresh order and reimpose the same. He, however, reduced the quantum of penalty from Rs. 1,15,262 to Rs. 87,000. The assessee went in second appeal to the Tribunal. The Tribunal confirmed the order of the Assistant Commissioner in regard to the power of the Sales Tax Officer to impose the penalty but further reduced the quantum of penalty to Rs. 57,000. The assessee being not satisfied by the finding of the Tribunal in regard to the power of the Sales Tax Officer to pass a fresh order to reimpose the penalty after its order had been set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the controversy before the Supreme Court related to the scope and ambit of the powers of the Income-tax Appellate Tribunal under section 254(1) of the Income-tax Act, 1961, in deciding the appeals before it. Section 254(1) is as under: "254(1). The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." The Supreme Court construed the above provision, particularly the expression "pass such orders as it thinks fit", and held: "The expression 'as it thinks fit' is wide enough to include the power of remand to the authority competent to make the requisite order in accordance with law in such a case even though the Tribunal itself could not have mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and the second appeal) shall have the following powers: (a) in an appeal against an order of assessment, it may confirm, reduce, enhance or annul the assessment; or it may set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; and the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment; (b) in an appeal against an order imposing a penalty, or interest the appellate authority may confirm or cancel such order or vary it so as either to enhance or to reduce the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst an order of assessment and in appeal against an order of penalty. While dealing with an appeal against an order of assessment it has been specifically conferred with the power to set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in the manner specified therein but no such power is there while deciding an appeal against an order of penalty. The omission of this power of setting aside and referring back for fresh order is not accidental but deliberate. The Legislature has given to the appellate authority while dealing with an appeal against an order of penalty, in addition to the power to confirm or cancel such order, also the power to vary it so as either to enhance or reduce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to take up the matter again and to pass a fresh order of penalty." 6.. Thus on a proper construction of sub-section (6) of section 55 of the Act (as substituted by Maharashtra Act 42 of 1971), in particular clause (b) thereof, it is clear as held by this Court in Balaji Cotton Company [1995] 97 STC 613 that the appellate authority has no power to set aside the penalty to enable the assessing authority to make a fresh order or to initiate the proceedings afresh. In the context of clause (b) of section 55(6) of the Act, setting aside of an order of penalty can only mean cancellation of the penalty. That being the legal position, the authority which imposed the penalty cannot reimpose the same by passing a fresh order. 7.. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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