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TMI Blog1977 (2) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... for a remission of the penalty under the proviso to s. 36 (3) were advanced. These will have to be stated and examined. 2. As regards the first period the relevant facts are as follows. The quantum of the penalty levied is Rs. 46,768.37. However, it is contended that the working of the Assistant Commissioner in his appellate order itself proves that there was an excess payment by the assessee of Rs. 34,000. This working may be set out as follows:- . Rs. P Total sales as per appeal order 1,72,18,886.00 Total taxes collected 3,15,256.00 Branch transfer as per A.O 7,10,596.00 Revised charges as per A.O 38,275.00 Under s. 75 as per A.O 55,69,525.00 Net local sales 1,05,85,234.00 From 15 @ 2 per cent 148.00 Tax @ 2 per cent 2.00 Taxable sales @ 2 per cent 1,05,85,086.00 Tax @ 3 per cent 3,17,552.00 S.T. payable 3,17,555.54 G.S.T. payable as per A.O 9,937.80 Penalty under s.36(3) as per appeal 46,768.37 Total Tax and penalty payable 3,74,261.71 Tax paid before A.O. 3,61,796.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joshi vehemently refuted these propositions. He stated that tax may have been shown as charged in the bills. But in point of fact the bills have not been paid and as a result the tax charged in the bills also has not been collected. 5. The next ground relied on by Shri Joshi is, that as observed by the Assistant Commissioner in para 6 of his order, on certain sales deposits at 3 per cent had been collected. These had not been returned to the purchasers even till the passing of the order by the Assistant Commissioner. The amount of such deposits was Rs. 2,95,508. Before the lower authorities a contest was made that these amounts were in the nature of deposits. They were not sale price of any goods. The amount could not be included in the turnover of sales. The Assistant Commissioner, however, held that the amount should be included in the turnover of sales liable to tax. In this connections, the contention of Shri Joshi is that the finding of the Assistant Commissioner is wrong in the law.The present appellant, on account of, grave financial difficulties, could not file on appeal against the above said finding. However, through no appeal was find, it did not preclude him from now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the sales tax department. It may that the receipts are classified under different heads. However, the fact remains that the receipts are in fact by the same department. It is pointed out that the sales tax department, on a request by the assessee, adjusts the refunds due under the Central Sales Tax Act against the dues arising under the Bombay Sales Tax Act also. It is, therefore, vehemently contended that it would be improper and unjust to deny to an assessee the benefit of the remission under the proviso to s. 36(3), merely on the technical ground that the refund which has arisen and though it may relate to sales tax, is not under the state statute but under the Central statute. The contentions of Shri Joshi appears to be well sustained. If the principle underlying the proviso to s.36(3) is that the Revenue should be compensated for its being out of pocket by certain amount for a certain period, then the fact that the assessee has also been out of pocket for certain amount for certain period by reason of payments made by him by way of sales tax, would also appear to be a relevant consideration for the proper exercise of the discretion under the proviso. 8. Shri Joshi ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh on hand at Rs. 19,822 ; bank balances in current account are Rs. 5 lakhs and odd., bank balances in fixed deposit account are also Rs. 5 lakhs and odd. Similarly, for the year 1972-73 cash in hand is shown as Rs. 2 lakhs and odd, bank balances in current account are Rs. 1 lakh and odd; those in fixed deposit account are Rs. 15 lakhs and odd. From this Shri Sardeshmukh argues that there were enough liquid assets for payment of taxes. Shri Joshi vehemently assails this position. He states that there were huge loans from the banks against hypothecations of the stock in trade. In 1970-71 these were over Rs. 32 lakhs. In 1972-73 these were over Rs. 11 lakhs. He averred that payments made against sales of such hypotheticated goods had be entered in this current account in the bank and could not be withdrawn. They did not at all constitute liquid assets from which any taxes could have been paid. At best the amounts shown as cash in hand were available with the appellant. However, looking to the turnover of the appellant, such small amounts of cash in hand were amounts required for carrying on the day to the work. 10. As regards this aspects of the matter, it does not appear that fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantum of the penalty. In my opinion, a penalty of Rs. 20,000 would be adequate to meet the ends of justice. 14. As records the second period, namely 1st July, 1971 to 30th June, 1972 the circumstances relevant for remission are as follows. Firstly, as fully discussed in para 4 above, Shri Joshi mentions that is not true that tax was collected and was not paid in this year also. The next circumstances pressed is that the Assistant Commissioner has wrongly held an amount of deposits with customers as being part of sale price and has correspondingly enhanced the turnover of sales liable to tax by Rs. 81,436. This is found in para 5 of the Assistant Commissioner's order. The respective contentions of the parties in this respect and the findings are contained in para 5 above. The next circumstance relied on as relevant for remission, namely, the mode of business and the inordinate delays have been dealt in para 8 above. It has been held that they are not relevant for the exercise of discretion under the proviso. Observations in paras 9 and 10 above relating to the contention of Shri Sardeshmukh that there were enough liquid assets with the assessee to pay the taxes apply to this yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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