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TMI Blog2011 (2) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... er for review of the order passed by the Tribunal in the aforestated Revision case has been refused. With the consent of the parties both these matters have been taken up and have been heard analogous by us with the view to its final disposal. As the issues are common hence, for the sake of convenience, we shall be referring to the pleading set out in the Tax Case No. 1 of 2008. The Petitioner is a Corporation established under Section 3 of the Food Corporation Act, 1964 (Act 37 of 1964) with the avowed object and purpose of purchase and distribution of food grains in the States for making it available to the citizens at fair prices. The Petitioner is a registered dealer under the Bihar Finance Act, 1981 (hereinafter, referred to as the "Act of 1981") which stood repealed and replaced by the Bihar Value Added Tax Act, 2005 (hereinafter, referred to as "Act of 2005"). The Petitioner under the provisions of Section 19 of the Act of 2005 continues to be a registered dealer under the said Act. The brief facts giving rise to the present set of cases is that the Petitioner is the biggest dealer of food grains in the State having its office and godowns spread over the State and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving rise to Appeal Case No. ST-SL-104/2002-03 which was rejected vide order dated 20th December, 2003. The revision preferred by the Petitioner challenging the orders of Statutory Authorities giving rise to Rev. Case No. PT-22 of 2004 before the Commercial Taxes Tribunal, Bihar, Patna resulted in partial relief to the Petitioner. The Tribunal in its judgment and order dated 6th October, 2004 placed at Annexure-3 while remitting the matter to the Assessing Authority on the issue of enhancement of gross turn over, upheld the order of penalty. The attempt of the Petitioner to seek reference on the question of law framed by it was negated by the Tribunal vide order dated 29th September, 2008 passed in Ref-PT-1/2005 giving rise to the present case. The prayer for review having been rejected under the order dated 1st November, 2007 passed in Review Case No. PT-29 of 2004 by the Commercial Taxes Tribunal, Bihar, Patna has given rise to Misc. Appeal No. 131 of 2008. As the issue raised in the matters before us strike to the very root of the action of the authorities in imposing penalty, we deem it appropriate to consider and dispose of the matter on merits rather than to relegate the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minority view laid down the correct law. Learned Counsel referred to the following paragraph of the judgment which was a reproduction of the minority view of Justice Bhagwati:- Bhagwati, J., after referring to Sections 3, 7, 10, 11 and 11B of the Act, points out that Section 7(2) speaks of "full amount of tax due on the basis of the return and adds:- ............We must look at the return actually filed by the Assessee in order to see what is the full amount of tax due on the basis of such return. It is not the assessed tax nor is it the tax due on the basis of a return which ought to have been filed by the Assessee but it is the tax due according to the return actually filed that is payable under Sub-section (2) of Section 7. This provision is really in the nature of self-assessment and what it requires is that whatever be the amount of tax due on the basis of self-assessment must be paid up along with the filing of the return which constitutes self-assessment. I fail to see how the plain words of Sub-section (2) of Section 7 can be tortured to mean full amount of tax due on the basis of return which ought to have been filed but which has not been filed. Learned Counsel al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax in terms of the said returns were filed by the Petitioner within the prescribed period. It is also an admitted position that additional tax was found to be outstanding on the basis of the internal audit of the Petitioner. It is also admitted that the said tax was deposited by the Petitioner subsequently but much prior to the assessment proceedings. The entire issue raised in the present proceedings is whether the deposit of the outstanding tax by the Petitioner beyond the prescribed period but prior to the assessment proceedings would entail imposition of penalty in terms of the provisions set out under Section 16(9) of the Act of 1981 which runs as follows:- 16(9) If any registered dealer fails to make payment of the tax under Subsection (5) within the due date mentioned in the said Sub-section or within the extended date under the proviso to Clause (iii) of the said Sub-section or of any extra amount of tax due from him according to return or revised return as mentioned in Sub-sections (6) and (7) or if a dealer to whom permission to file an annual return has been given under the third proviso to Sub-section (1) of this Section, fails to make payment of the tax in the mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute....... The scope, intent and the applicability of Section 16(9) of the Act of 1981 came up for consideration before this Court in a case of another Public sector Corporation namely, the M/s Indian Oil Corporation Ltd. reported in 2003(3) PLJR 561, 2007(4) PLJR 175 and 2007(4)PLJR 328. In each of the situations, the said Corporation had deposited the tax belatedly as in the case of the present Petitioner and thus subjected to proceedings under Section 16(9) of the Act of 1981. This Court in the judgment reported in 2003(3) PLJR 561 considering the circumstances in the backdrop of the statutory provisions of Section 16(9) held as follows:- 21. The facts have already been stated above. Whether it can be said that the Petitioner has acted dishonestly, deliberately and in conscious disregard to the statutory requirement. The glaring facts clearly show that there was a prolonged litigation. The Petitioner bona fide believed that it was liable to pay tax from the date of the judgment of the Apex Court when the Act was held to be valid piece of le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised return submitted by the dealer. He further submitted that whatever taxes were payable according to the return or the revised return(s) submitted by the Petitioner were actually paid on the same day the return(s) were filed and hence, there was nothing to attract the provisions of Section 16(9) of the Act. In support of the submission, he relied upon a decision of the Supreme Court in J.K. Synthetics Ltd. v. Commercial Taxes Officer and Birla Cement Works and Anr. v. State of Rajasthan and Anr. (1994) 94 STC 422 (SC). 15. On hearing Dr. Pal for the Petitioner and the learned Advocate General on behalf of the State and on a careful consideration of the materials on record, I find substance in both the submissions made on behalf of the Petitioner and I am of the considered view that in the facts and circumstances of the case, the impugned order of penalty is unsustainable. The imposition of penalty against the Petitioner by the Revenue Authorities for the assessment period 1998-99 is accordingly set aside. It is an admitted position that even before the Assessing Officer could do the assessment proceeding for the period in question, the Petitioner had deposited the entire admit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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