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TMI Blog2009 (1) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... rence. In the instant case the judgment of the Tribunal dated November 2, 1988 The entire focus was as to whether the respondent/dealer was an assessee in default despite the fact that it had paid tax every quarter based on the return filed by it. In the circumstances, we deem it fit to return the reference unanswered. - - - - - Dated:- 9-1-2009 - BADAR DURREZ AHMED AND RAJIV SHAKDHER , JJ. The judgment of the court was delivered by RAJIV SHAKDHAR J. This is a reference under section 45(1) of the Delhi Sales Tax Act, 1975 (hereinafter referred to as, the Act ) made to us by the Appellate Tribunal Sales Tax, Delhi (hereinafter referred to as, the Tribunal ) by an order dated May 24, 1989. By virtue of the aforesaid order, the Tribunal has referred the following questions for the opinion of this court: (i) Whether the Tribunal was justified in holding that rule 23A was repugnant to section 2(o) and interest was not leviable on the tax calculated on the value of the raw materials purchased? (ii) Whether the Tribunal was justified and was empowered to hold that rule 23A was repugnant to section 2(o) of the Delhi Sales Tax Act, 1975? In order to deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is yearly, and was required to pay tax on the basis of the turnover within one month from the date of demand notice and, if the dealer did not pay the tax, so assessed, within one month from the service of demand notice, it is only then, that, the dealer would be liable to pay interest. In coming to the said conclusion, the learned Member of the Tribunal followed the decision of his predecessor by noting that he was in respectful agreement with the view held by his predecessor, in as much as, that the interest was payable by a dealer if it failed in paying the assessed tax within one month from the date of service of demand notice issued by the assessing authority. The Tribunal thus concluded that the assessing authority was not justified in levying interest on the assumption that the tax was liable to be paid along with each quarterly return. Accordingly, the Tribunal allowed the appeal vide its order dated November 2, 1988, and set aside the orders of the authority below with regard to the imposition of interest, while upholding levy of tax. The Department, as mentioned above, being aggrieved, filed an application before the Tribunal under section 45 of the Act for referring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mdard Dawakhana (Wakf) 23 DSTC T-32 has made a passing reference with respect to the submissions raised by the counsel appearing in that case on the aspect of the rule 23A being repugnant to section 2(o) of the Act, but the decision is not based on this aspect of the matter; (ii) as a corollary to the submissions made above, Mr. M.K. Arora, Advocate, submitted that the questions referred to this court by the Tribunal did not arise in the instant case and hence, this court need not answer the said questions. In support of his submissions, Mr. M.K. Arora, cited the following decisions: J.K. Synthetics Ltd. v. Commercial Taxes Officer [1994] 94 STC 422 (SC), India Carbon Ltd. v. State of Assam [1997] 106 STC 460 (SC), Khemka Co. (Agencies) Pvt. Ltd. v. State of Maharashtra [1975] 35 STC 571 (SC) and Maruti Wire Industries Pvt. Ltd. v. Sales Tax Officer [2001] 122 STC 410 (SC). Having heard the learned counsel for the appellant, as well as, the respondent and perused the orders of the authority below, we are of the view that, in the instant case, the questions referred to this court for our opinion need not be answered for the reasons stated hereinafter. First and foremos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax, he shall, in addition to the amounts payable under section 23 or section 24, be liable to pay simple interest on such amount at one per cent per month from the date of such default for a period of one month, and at one and a half per cent per month thereafter for so long as he continues to make default in the payment of the said amount. As per section 25 of the Act, a person is deemed to be in default in respect of the amount of tax if it is not paid within the time specified in sub-section (1) or extended under sub-section (2), as the case may be. This being so, the liability to pay interest shall arise if the assessed amount of tax under section 23 or under section 24 is not deposited in Government Treasury within 30 days from the date of service of notice of demand as contemplated by sub-section (1) of section 25. So, on the said point with regard to liability to interest, the orders of the authorities below are liable to be set aside with a direction that the interest would be calculated at the permissible rate with effect from the expiry of one month from the serving the demand notice. A perusal of the judgment of the Tribunal dated November 2, 1988, passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. We may also note that, the learned counsel for the respondent-dealer placed reliance on the judgment of a Division Bench of the Rajasthan High Court in the case of Educational and Civil List Reserve Fund No. 1 v. Commissioner of Income-tax, Delhi and Rajasthan [1964] 51 ITR 112, to support his submission that since the Tribunal in the impugned judgment chose not to decide the issue of repugnancy of rule 23A vis-a-vis section 2(o) of the Act, even though it made a passing observation with respect to the same, it would be open to the court to refuse to answer such a reference made to it, on an issue, which the Tribunal chose consciously not to decide. In the said judgment, the Division Bench of the Rajasthan High Court, in turn, has placed reliance upon the judgment of the Supreme Court in the case of Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589. The Division Bench opined, in the context of section 66 of the Income-tax Act, 1922, while interpreting the expression any question of law arising out of such order would not include a question of law which even though raised before the Tribunal, the Tribunal consciously chooses not to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeat here: [1961] 42 ITR 589, 609 'How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought?' If we may adopt the phraseology of their Lordships to suit the present occasion, then we would put it somewhat like this: 'How can it be said that the Tribunal should seek for advice on a question which it was called upon to consider and which it had, therefore, an opportunity to consider and decide but which it deliberately refused to decide?' It seems to us that the answer to this question has to be in the negative. We should also like to add that, in the circumstances of this case, we are altogether unable to hold that this particular question should be deemed to have been dealt with by the Tribunal or treated as having been answered by it against the department when it was fully conscious of it and yet it deliberately refused to answer the question. So far as we are able to understand the spirit and intendment of section 66 of the Act, it does not seem to go so far as to contemplate that a Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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