Commissioner,
Sales Tax, U.P. Lucknow Vs. Anoop Wines, Khuldabad, Allahabad [1988] INSC 245 (26 August 1988)
Mukharji,
Sabyasachi (J) Mukharji, Sabyasachi (J) Rangnathan, S.
CITATION:
1988 AIR 2042 1988 SCR Supl. (2) 599 1988 SCC Supl. 731 JT 1988 (3) 631 1988
SCALE (2)550
ACT:
Uttar
Pradesh Sales Tax Act, 1948/Uttar Pradesh Sales Tax Rules 1948: Sections 8A(1)(c)
and l5A (1)(g)- Registration of dealer-Failure to register-Imposition of
penalty without notice-Whether justified.
HEAD NOTE:
On the
basis of a survey conducted, the respondent, a dealer in foreign liquor was
directed to get itself registered for 1977-78 as a dealer. But this direction
was not complied with. Such a direction in respect of l976-77 was also not
complied with. The Sales Tax Officer imposed a 0penalty of Rs.4,500 for
non-registration under Section 15A(1)(g) of the Act. The respondent went on
appeal before the Assistant Commissioner (Judicial) who dismissed the appeal.
Thereafter it preferred a revision before the Additional Judge (Revision) which
was subsequently transferred to the Sales Tax Tribunal. The Tribunal dismissed
the appeal. The respondent challenged the Tribunal's order, before the High
Court by way of revision.
Allowing
the revision, the High Court held that the respondent was not under the legal
obligation to seek registration and so the question of penalty under Section l5A(1)(g)
of the Act did not arise.
This
appeal, by special leave is against the aforesaid decision of the High Court.
Dismissing
the appeal,
HELD:
1.1 Without calling upon the assessee or the dealer to explain its claim on
Section 8-A(1)(c) the imposition of the penalty which was sought to be
sustained and maintained under clause (d) of Section 8-A(1) of the Act cannot
be sustained by reference to clause (c). [603A-B]
1.2
Clause (d) of Section 8-A(1) has no application to the facts of the present
case. The dealer did not commence business during the course of the assessment
year and as such he was not registrable in terms of that section. Clause (d) of
the said section refers to a dealer who has commenced PG NO 599 PG NO 600
business during the course of an assessment year. It is abundantly clear that
the assessee had started the business in the preceding year and is not the one
who commenced his business during the course of the assessment year 1977-78.
Therefore,
clause (d) is inapplicable to the assessee. The contention that the order for
the imposition of penalty could and should have been justified on clause (c) of
Section 8-A(1) being a dealer who would, but for any exemption made or granted
under the Act, be liable to pay tax thereunder provided his actual or estimated
turnover for the assessment year is not less than fifty thousand rupees, was
never agitated before the authorities below. The assessee or the dealer never
had any occasion to meet this case. It is not a question of sustaining
jurisdiction by reference to a wrong section, but imposition of penalty without
notice. [602d-H; 6O3A] L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circul,
Ambala Cantt. and Anr., [1961] 41 I.T.R. 12p. 20, distinquished.
CIVlL
APPELLATE JURISDlCTlON: Special Leave Petition (Civil) No. 14274 of 1985.
From
the Judgment and Order dated 7.2.85 of the Allahabad High Court in sales Tax
Revision No. 206/1984.
A. K. Srivastava
for the petitioner.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is a
petition for leave to appeal against the decision of the High Court of
Allahabad, dated 7th
February, 1985.
It is
a matter dealing with sales-tax. The dealer commenced business of foreign
liquor from 1st May,
1976.
From
the record, it appears that a survey was made on 7th August, 1976 and the respondent was directed to get itself registered
for 1977-78 as a dealer. It did not. This was so inspite of having been
directed to do so in respect of 1976- 77 and, as such, penalty was imposed. The
Sales Tax Officer by his order dated 16th December, 1977 imposed penalty of Rs.
4,500 for non-registration under section 15A(i)(g) of the Uttar Pradesh Sales
Tax Act, 1948 (hereinafter called 'the Act'). Section 15A empowers the
assessing authority, if satisfied, that any dealer had not done certain things
as contained in the various sub-clauses of sub-section (1) therein stated it
would be liable to penalty. The dealer is liable if he fails to obtain transit
pass or to deliver the PG NO 601 same as provided in section 28-B of the Act.
It is on this score, that is to say, failure to obtain or deliver transit pass
that the dealer was found guilty and was penalised.
Against
the aforesaid order, the respondent-dealer filed an appeal before the Assistant
Commissioner (Judicial) Sates Tax, Allahabad Range, Allahabad. The said Assistant Commissioner by his order dated 31st March, 1980 dismissed the appeal and confirmed
the order of the Sales Tax Officer.
Aggrieved
thereby the dealer preferred a revision before the Additional Judge (Revisions)
Sales Tax, which was subsequently transferred to the Sales Tax Tribunal.
Allahabad Bench. Allahabad. The Sales Tax Tribunal by its
order dated 27th February. 1984 dismissed the appeal of the dealer and
confirmed the order of the Assistant Commissioner (Judicial), Sales Tax.
Aggrieved thereby the assessee challenged the same in the High Court by way of
revision.
The
High Court in the impugned judgment allowed the revision. The High Court noted
the contention of the assessee that it was not under the legal obligation to
seek registration and therefore, the question of any penalty under section 15A(1)(g)
of the Act did not arise.
In
this connection it is relevant to refer to Section 8A of the Act. Section 8A so
far as material for our present purpose provides as follow:
"8A.
Registration of dealers and realization of tax by dealers. (1)(a) Every dealer
who sells any goods imported by him from outside Uttar Pradesh the turnover
whereof is liable to tax under sub-section (1) of section 3-A; and (b)every
dealer who is liable to pay tax under any other provision of this Act; and ( c)
every dealer who would, but for any exemption made or granted under this Act,
be liable to pay tax thereunder, provided his actual or estimated turnover for
the assessment year is not less than fifty thousand rupees in the case of
manufacturers and one lakh rupees in the case of other dealers or such large
amount as may be notified under sub- section (2) of section 3; and (d) every
dealer commencing business during the course of an assessment year whose
average monthly estimated PG NO 602 turnover for the remainder of the year, or
whose actual turnover in any month during the aforesaid period, is not less
than one-twelfth of fifty thousand rupees in the case of manufacturers and one lakh
rupees in the case of other dealers or of such larger amount as may be notified
under sub-section (2) of section 3; shall apply for registration or renewal as
the case may be to the assessing authority in such form, in such manner and
within such period as may be prescribed. The application for registration or
renewal shall, as from the assessment year l978-79, be made for a period of
three assessment years and the applications for subsequent renewals shall be
made for every three years hereinafter referred to as the triennial
renewal:" We are not, in the instant case, concerned with the different
provisos and the subsequent clauses. It appears that clause (d) has no
application to the facts of this case. The dealer indeed in this case did not
commence business during the course of the assessment year and as such he was
not registrable in terms of that section. Clause (d) of the said section refers
to a dealer who has commenced business during the course of an assessment year.
It is abundantly clear in this case that the assessee had started his business
in the preceding year and is not the one who commenced his business during the
course of the assessment year 1977-78, therefore, clause (d) is inapplicable to
the assessee. The High Court noted that he is not said to have been covered by
any other clause of sub-section (1) of section 8A. That is the parameter within
which the matter was canvassed before the authorities below. Counsel for the
revenue, however, sought to urge before us that the order for the imposition of
penalty could have been and should have been justified on clause (c) of section
8-A(1) being a dealer who would, but for any exemption made or granted under
the Act, be liable to pay tax thereunder, provided his actual or estimated
turnover for the assessment year is not less than fifty thousand rupees. This
point was never agitated before the authorities below. The assessee or the
dealer had never any occasion to meet this case. It is not a question of
sustaining jurisdiction by reference to a wrong section as was done in the case
of L. Hazari Mal Kuthiala v. Income tax Officer,Special Circle, Ambala Cantt. and
Anr., [1961] 41 I.T.R. 12 at page 20 where this Court held that if a particular
action is valid under one section. it cannot be rendered invalid because
reference was made to another section, and it makes no difference if the two
empowering provisions are in the same statute. But this principle will have no
application where in a penal action no notice was PG NO 603 given or resort to
such a provision was made to the delinquent or the offending party.
In
that view of the matter, we are of the opinion that without calling upon the assessee
or the dealer to explain its claim on section 8-A(1)(c) the imposition of the
penalty which was sought to be sustained and maintained under clause (d) of
section 8-A(1) of the Act cannot be sustained in this case by reference to
Clause (c).
In the
premises, the High Court was right in the view it took. The petition raises no
substantial question of law which requires looking into or interference by this
Court.
The
petition, therefore, fails and is dismissed accordingly.
G.N.
Petition dismissed.
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