9911796707
TMI Blog2003 (1) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... force with effect from July 1, 1993. The petitioner who used to carry on the business of sale of lottery tickets, an item which was not taxable prior to coming into force of the Act, received a notice dated August 2, 1993 from the Superintendent of Taxes, Guwahati Unit-C informing the petitioner that it had sold lottery tickets of the value of Rs. 51,15,485 for the period from July 1, 1993 to July 31, 1993 attracting tax at the rate of 10 per cent. Consequently, the writ petitioner was asked to apply for registration on or before July 31, 1993 and also to deposit the tax due for the month of July, 1993. It appears that the petitioner did get itself registered as dealer under the Act of 1993 and the liability of the dealer to pay tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary the petitioner, in the said reply dated October 14, 1993, had indicated certain financial difficulties for its inability to pay the entire tax due for the period in question and the fact that a sum of Rs. 30,000 was paid as advance tax. It appears from the records produced on behalf of the State Respondents that time as prayed for was granted up to October 27, 1993. On October 27, 1993, 15-20 days further time was again prayed for and it appears that time until November 6, 1993 was allowed. On November 8, 1993 returns for the two months in question were filed by the petitioner and as the said returns were not accompanied by the requisite proof of full payment of tax due the authority by order dated November 10, 1993, proceeded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner on November 8, 1993, exercise of power under section 17(5) of the Act is bad in law and the jurisdictional Superintendent of Taxes ought to have finalised the assessment on the basis of the returns filed by the petitioner by invoking the provisions of section 17(3) of the Act. 4.. In so far as imposition of penalty is concerned, learned counsel by placing reliance on a judgment of this Court in the case in Brajalal Banik v. State of Tripura reported in [1990] 79 STC 217 has contended that the power to impose penalty following default in payment of tax is not automatic and penalty has to be imposed upon a defaulter by taking into consideration all relevant facts and circumstances, like the reasons for default, the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid return. When such turnover on the basis of which best judgment assessment was proposed was made available to the writ petitioner and he was given several opportunities to show-cause against the same, the requirement spelt out in the judgment of this Court in case of Dwijendra Kumar Bhattacharjee [1990] 78 STC 393 cannot be said to have not been met by the authority concerned. The petitioner as already noticed, did not raise any dispute on this score. In my considered view, the requirement of compliance with the principles of fairness was adequately met by the authority in the present case. The first submission therefore, has to fail. Coming to the second submission of the writ petitioner, i.e, that as the writ petitioner has filed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act of 1993 the penalty provision is attracted in any of the situations enumerated in section 23. Accordingly, the decision of this Court in the case of Brajalal Banik [1990] 79 STC 217 pressed into service by the learned counsel for the petitioner, is of no avail. However, this Court has noticed that the penalty at the maximum rate has been imposed by the authority in the present case. Such maximum penalty as contemplated by the provisions of section 23(ii) of the Act is attracted in a case falling under clause (b), (c), (d) or clause (g) of section 23(1). Which particular clause of section 23(1) has been applied in the present case is not disclosed in the impugned order dated November 10, 1993. The notices issued to the petitioner con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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