Kishan Lal Wine Merchants Pvt. ... vs Commissioner Of Sales Tax
1991 Latest Caselaw 243 Del

JUDGMENT

B.N. Kirpal, J.

1. The Financial Commissioner, under the provisions of section 45(1) of the Delhi Sales Tax Act, 1975, has referred to this Court four questions for consideration arising out of the assessment to sales tax of the appellant in respect of the assessment years 1967-68 and 1968-69 under the provisions of the Bengal Finance (Sales Tax) Act, 1941 (as extended to the Union Territory of Delhi) (hereinafter referred to as "the local Act").

2. The applicant, M/s. Kishan Lal Wine Merchants Pvt. Ltd., is a registered dealer with the Sales Tax Department and is engaged in the business of selling wine, crockery and other provisions. In the assessment year 1967-68 a cheque for Rs. 45,072.08 was submitted by the dealer along with return furnished by him for the quarter ending 31st March, 1968, but the same was dishonoured since it exceeded the arrangement with the bank. A notice was issued to the dealer under section 11(3a) of the local Act as to why penalty should not be imposed for non-payment of arrears of tax but none appeared on behalf of the dealer and, therefore, Shri S. N. Kak, Sales Tax Officer, Ward No. 1, by his order dated 7th August, 1968, imposed a penalty of Rs. 10,000. The dealer was also asked to deposit Rs. 45,072.08, the amount of dishonoured cheque.

3. A penalty of Rs. 5,000 was imposed by Shri S. N. Kak for non-payment of tax for the first quarter of 1968-69 amounting to Rs. 40,257.86 under section 11(3a) by order dated 7th September, 1968.

4. Assessment for the year 1967-68 was framed by Shri R. C. Minocha, Assistant Sales Tax Officer, Ward No. 1, by his order dated 28th February, 1972. He observed that the cheque for Rs. 45,072.08 having been presented on 30th June, 1968, was obviously tendered late by two months and that too was dishonoured. The dealer contended that the cheque was tendered in time and after that they did not know about the same. The payment of the cheque was, however, cleared by the dealer in Installments at his convenience in the months of March, April and December, 1969. For this default the learned assessing authority imposed a penalty of Rs. 15,000 under section 11(1) of the local Act.

5. Scrutiny of books of accounts also revealed that the dealer had not been charging sales tax separately on the sale of wine from the customers and was issuing consolidated cash memo inclusive of sales tax but in the returns revised statements gross return and taxable of wine was shown after deducting the amount of the sales tax. The dealer was, therefore, served with a notice dated 5th November, 1971, under section 22-A(1) of the local Act wherein he was apprised of the above facts and it was made known to him that he had not been showing the element of sales tax in the cash memo separately as required under rule 41(2) of the Delhi Sales Tax Rules, 1951 and, therefore, he had been wrongly claiming deduction from the gross turnover on account of sales tax charged by him. Observing that the dealer withheld the payment of Rs. 14,578.85 of Government revenue for 3 1/2 years, the learned assessing authority imposed a penalty of Rs. 7,500 under section 22-A(1) also. Thus total penalty imposed by the order dated 28th February, 1972, came to Rs. 22,500 (Rs. 15,000 plus Rs. 7,500).

6. The assessment for the year 1968-69 was also framed by Shri R. C. Minocha, Assistant Sales Tax Officer, by order dated 25th March, 1972. The cheque for first quarter of admitted tax of Rs. 40,259.86 was dishonoured for which a penalty of Rs. 15,000 had already been imposed under section 11(3a) by order dated 5th July, 1968, by Shri S. N. Kak, the then Sales Tax Officer but as amount of that cheque was deposited late by Installments in the year 1969 a penalty of Rs. 13,500 was imposed under section 11(1) of the local Act. As the dealer was not showing the element of sales tax in cash memo separately as required under rule 41(2) of the Delhi Sales Tax Rules, 1951, the assessing authority imposed a penalty of Rs. 6,100 under section 22-A(1). Thus in all a penalty of Rs. 19,600 was imposed (Rs. 13,500 plus Rs. 6,100) by order dated 25th March, 1972.

7. Aggrieved by the above order, the dealer went in appeal and Shri A. C. Kher, Assistant Commissioner, by his order dated 28th February, 1973, deleted the penalty under section 11(1) for both the years on the ground that the penalty had already been imposed under section 11(3a). He, however, maintained the order of penalty under section 22-A(1) of the Act.

8. The Assistant Commissioner held that after the penalties were imposed under section 11(3a) of the Act, no further penalty could have been imposed by the assessing authority as there was no provision in law for imposition of penalty after the penalty had been imposed under section 11(3a). He also observed that after section 11(3a) there is section 11(4) according to which any amount of tax or penalty which remains unpaid after the date specified in the notice shall be recoverable as arrears of land revenue. Thus according to him penalty of Rs. 15,000 and Rs. 13,500 imposed by the assessing authorities, vide the assessment order for the years 1967-68 and 1968-69 under section 11(1) were uncalled for as the same could not have been imposed under any provision of law. The said penalties were, therefore, deleted. The Assistant Commissioner, however, maintained the penalties of Rs. 7,500 and Rs. 6,100 imposed under section 22-A(1) in the assessment years 1967-68 and 1968-69, respectively on the ground that the dealer had furnished incorrect figures of the sales to the sales tax department because the return figures were below the real amount as the sales tax had been excluded by the dealer from the sale price while filing the returns.

9. Still dissatisfied, the dealer filed two revision petitions against the order of the Assistant Commissioner confirming the penalties under section 22-A(1) in respect of the years 1967-68 and 1968-69. The Commissioner of Sales Tax by his order dated 22nd December, 1973, confirmed the penalties imposed under section 22-A(1) and after issue of a notice to show cause why deletion of penalties of Rs. 15,000 and Rs. 13,500 imposed under section 11(1) for the two years should not be set aside, the Commissioner quashed the order of the Appellate Assistant Commissioner in that regard and restored the order of the assessing authorities imposing a penalty of Rs. 15,000 and Rs. 13,500 under that section. The learned Commissioner referred to sub-section (3) of section 10 which provides that the dealer shall furnish along with the return a receipt from the treasury or bank showing the payment of such amount. He also mentioned that sub-section (1) of section 11 makes specific provision that if a return is not filed and the tax due is not paid and the receipt in token thereof not furnished within the prescribed time, the penalty would be attracted. Similarly where the return filed and tax due is not duly deposited and a receipt in receipt thereof is not furnished along with the return the penalty would again be imposed. He observed that the dealer had already paid the penalty of Rs. 10,000 and Rs. 5,000 imposed under section 11(3a) without any protest and that those orders were not before him.

10. Aggrieved by the order of the Commissioner, the dealer filed two revisions before the Financial Commissioner who dismissed the same by his order dated 6th August, 1975. He held that a plain reading of section 11(1) clearly showed that all returns accompanied by receipt from Government treasury or the Reserve Bank of India as required under sub-section (3) of section 10 were required to be furnished by the prescribed date and admittedly the returns filed by the dealer on the last date of submission of returns provided under the rules were accompanied by the cheques but since requirement of section 10(3) and section 11(1) was that the returns should be accompanied by receipted challan from the Government treasury, furnishing of cheques on the last date by which the returns should have been furnished was not the compliance with the provisions of law. He added that since the cheques tendered on the last date were not encashed before the due date of submission of returns, the delay is entirely attributable to him and that delay in encashment of the cheques was not relevant for the purposes of imposition of penalty under section 11(1). As the cheques were cleared after a long time and tax remained unpaid for a considerable period he found the contention of the learned counsel for the petitioner as devoid of merits.

11. The Financial Commissioner also held that the dealer was not liable to make out a case that there was a reasonable cause for non-furnishing of returns duly accompanied by receipted challans. The plea that the penalty for non-payment of tax in time for two cheques which were dishonoured had already been imposed by Shri S. N. Kak. Sales Tax Officer and, therefore, the imposition of further penalty under section 11(1) against the time of framing assessment was not warranted was not accepted. The learned Financial Commissioner held that penalties imposed by the learned Assistant Sales Tax Officer under section 11(3a) of the Act were on account of dishonouring of cheques.

12. It was argued that penalty under section 11(3a) can be imposed only after the assessment had been made and the amount of tax assessed became an arrear. Relying on the decision of State of Madhya Pradesh v. Shyama Charan Shukla , the Financial Commissioner did not find any force in this argument of the learned counsel. He found that the penalties imposed by Shri S. N. Kak under section 11(3a) were in altogether different proceedings and had no relation with the penalty imposed under section 11(1) of the Act. He also held that the petitioner did not challenge the two penalties imposed by Shri S. N. Kak either in appeal or in revision before the authorities below nor before the learned Financial Commissioner. He held that the imposition of penalty under section 11(1) had no co-relation with the imposition of penalty under section 11(3a) of the Act.

13. The contention of the dealer in respect of the penalties of Rs. 7,500 for the year 1967-68 and Rs. 6,100 for the year 1968-69 under section 22-A of the Act was that there was no means read and that the non-inclusion of element of sales tax into the turnover of the dealer was a bona-fide mistake and, therefore, penalty was not justified. The Finance Commissioner found that admittedly the dealer deducted from his gross turnover the amount of sales tax from the consolidated price charged by him from the customers on the sales of country liquor. The cash memos did not show that the sales tax was in fact charged separately. What the dealer had charged was the price of the goods sold by him. He reduced that price by the amount of sales tax and then paid the tax on the reduced turnover. Therefore, the dealer furnished inaccurate particulars of sale and thereby returned figures below the real amount. Keeping in view the definitions of "sale price" and "turnover", the Financial Commissioner held that the real amount referred to in section 22-A of the Act would refer to the sale consideration after deducting there from any amount representing the sales tax. He also found that under section 22-A the law did not require that the furnishing of inaccurate sales should be deliberate. He, therefore, held that the element of means read was excluded from section 22-A and it was not necessary to be proved so before the penalty under section 22-A of the Act could be imposed.

14. On an application having been filed under section 45(1), the Financial Commissioner has referred the following four questions of this Court :

"(i) Whether, on the facts and circumstances of the case, the learned Financial Commissioner was justified in holding that penalty under section 11(1) of the Bengal Finance (Sales Tax) Act, 1941 (as extended to the Union Territory of Delhi) could be imposed in addition to the penalty already imposed under section 11(3a) of the said Act ?

(ii) Whether, on the facts and circumstances of the case, the penalty under section 11(1) can be imposed for not filing the returns according to section 10(3) ?

(iii) Whether, on the facts and circumstances of the case, it is necessary to prove means read for imposing a penalty under section 22-A ?

(iv) Whether, on the facts and circumstances of the case, the learned Financial Commissioner was justified in holding that by reducing the tax element from the sale price as disclosed in the bills, the dealer had furnished inaccurate figures below the real amount ?"

15. The penalties in question which have been levied are under section 11(1) and under section 22-A. There is no challenge to the penalty which was levied under section 11(3a).

16. We will first consider the penalty which has been levied under section 11(1) which, in respect of the assessment year 1967-68 was Rs. 15,000 and in respect of 1968-69 was Rs. 13,500.

17. Section 10 of the local Act requires that tax shall be paid in such a manner and at such intervals as may be prescribed. What is relevant, in the present case, is the provisions of section 10(3) which provide that before a registered dealer furnishes the returns required to be filed under sub-section (2) of section 10, he shall pay the full amount of tax due from him under the Act according to such returns. Proof of payment of the same has to be filed along with the return. In other words, the admitted amount of tax as per the returns has to be paid at the time of filing of the return. Section 10 does not provide for any penalty being levied in the event of the tax not being paid as required under section 10(3).

18. Section 11 pertains to assessment of tax. Relevant portion of the said section is as under :

"11. (1) If no returns are furnished by a registered dealer in respect of any period by the prescribed date, or if the Commissioner is not satisfied that the returns furnished are correct and complete, the Commissioner shall, within eighteen months after the expiry of such period, proceed in such manner as may be prescribed to assess to the best of his judgment the amount of the tax due from the dealer and in making such assessment shall give the dealer a reasonable opportunity of being heard; and in the case of failure by a registered dealer to submit in respect of any period, a return accompanied by receipt from a Government treasury or Reserve Bank of India as required under sub-section (3) of section 10, by the prescribed date, the Commissioner may, if he is satisfied that the default was made without reasonable cause, direct that the dealer shall pay by way of penalty in addition to the amount of the tax so assessed a sum not exceeding one and a half times that amount.

(2) If upon information which has come into his possession, the Commissioner is satisfied that any dealer, who has been liable to pay tax under this Act in respect of any period but has failed to get himself registered the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his judgment the amount of tax due from the dealer in respect of such period and all subsequent periods and in making such assessment shall give the dealer a reasonable opportunity of being heard; and the Commissioner may, if he is satisfied that the default was made without reasonable cause, direct that the dealer shall pay by way of penalty in addition to the amount of tax so assessed a sum not exceeding one and a half times that amount.

(3) The amount of tax -

(a) due where the returns are furnished without receipt showing full payment thereof, or

(b) assessed under sub-section (1), less the sum, if any, already paid by the dealer in respect of the said period, or

(c) assessed under sub-section (2),

shall, together with any penalty that may be directed to be paid under any of the provisions of this section or section 22-A, be paid by the dealer into a Government treasury or the Reserve Bank of India or in such other manner as may be prescribed by such date as may be specified in a notice issued by the Commissioner for this purpose and the date to be so specified shall be not less than thirty days from the date of service of such notice :

Provided that the Commissioner may, in respect of any particular dealer and for reasons to be recorded in writing, extend the date of such payment or allow such dealer to pay the tax due and the penalty, if any, by Installments.

(3a) When a dealer is in default in making a payment of the tax, the Commissioner or any person appointed to assist him under sub-section (1) of section 3, may in his discretion direct that, in addition to the amount of the arrears, a sum not exceeding that amount shall be recovered from the dealer by way of penalty."

19. Sub-section (1) of section 11 is really in two parts, the first part enables the assessing officer to make an assessment to the best of his judgment in the event where no returns are filed or, where returns are filed, a full, correct and complete particulars are not furnished. The second part of section 11(1) provides that in the event of the failure of the registered dealer to submit a return accompanied by the proof of payment of tax as required by section 10(3) then, after notice to show cause has been given, the dealer may be required to pay by way of penalty in addition to the amount of tax so assessed, a sum not exceeding one and a half times of that amount. Section 11(3a) refers to the default being committed in payment of tax and provides for the Commissioner, or any other person who is duly authorised to levy tax by way of penalty a sum to be calculated in the manner specified therein.

20. As we read section 11 as a whole, it appears to us that the legislative policy apparently is that whenever penalty is required to be imposed, a provision has been made at the appropriate place. For instance, there is a provision in section 11(1) for imposition of penalty. Similarly in the event of default being committed for non-compliance of the provisions of sub-section (2) of section 11, there is a penalty provided for by the said sub-section and though there is no specific provision contained in sub-section (3) of section 11 for imposition of penalty, sub-section (3a) of section 11 has a direct relevance to that. Sub-section (3a) provides for levy of penalty in the case of a default in payment of tax. It does not concern itself with the default in the filing of a return. On the other other hand, section 11(1) is concerned with the filing of the return. The default which is referred to in the latter part of section 11(1) is, in our opinion, default in the non-filing of the return. In other words, whereas the penalty referred to in section 11(1) is with reference to the non-filing of the return, the penalty contemplated under section 11(3a) is for the non-payment of tax.

21. The reason for our coming to the aforesaid conclusion is very simple. Sub-section (1) deals with furnishing of the return, where as it is sub-section (3) of section 10 and sub-section (3) of section 11 which deal with the payment of tax. When there is a provision in sub-section (1) of section 11 for levy of penalty, it is obvious that levy of penalty for the same offence cannot be provided for in sub-section (3a) of section 11. But we find that sub-section (3) envisages a situation where the amount of tax may be due "where the returns are furnished without receipt showing full payment thereof". In such a situation where there is no proof of payment of tax having been made along with the returns, sub-section (3a) immediately comes into play. That is a sub-section which deals, expressly, with the dealer making a default in payment of the tax. To put it differently, payment of tax is contemplated by sub-section (3) of section 10, section 11(1) and sub-section (3) of section 11. For the non-payment of tax, there is a specific provision enabling the levy of penalty and that provision is sub-section (3a) of section 11. Assuming, for the sake of argument, that penalty could have been levied under section 11(1) if the return was not accompanied by the proof of payment of tax, nevertheless when a specific provision has been inserted, by an amendment in 1959, by enacting sub-section (3a) of section 11, the implication is that for non-payment of tax, penalty can only be levied under section 11(3a) and under no other provision. If, therefore, tax as contemplated under section 10(3) is paid but, for some reason, return as required under section 11(1) has not been filed then no penalty would be leviable for the non-payment of tax but penalty would still be leviable under section 11(1) for non-filing of the return. What has happened in the present case is the reverse, namely, return has been filed within time but payment has not been made as contemplated by section 10(3). Therefore, no penalty would be leviable under section 11(1) but penalty would be leviable under section 11(3a) and that penalty has been levied in the present case, which is not the subject-matter of dispute before us.

22. We may, at this stage, also notice that a similar question came up for consideration before a Division Bench of this Court in the case of Commissioner of Sales Tax v. Rashmi Electricals [1981] 47 STC 207. After referring to section 11(1), the court observed as follows :

"The provision in section 11(1) shows that if a registered dealer fails to submit a return accompanied by a receipt from a Government treasury or the Reserve Bank of India, a penalty can be imposed at the rate of one and a half times of the amount of tax. This provision deals with a case where there is a default to file the return in time. If there is a default on account of the cheque being dishonoured, this provision does not seem to have any bearing. On the other hand, section 11(3a) deals with a case where there is a default in the payment of tax. In this case, the penalty can be imposed equal to the amount. Clearly, the penalty under section 11(3a) is more properly attracted to a case where a return is filed without payment the corresponding tax, and the provisions of section 11(1) which deal with the failure to file the return and other defaults are not attracted.

Section 11(3a) actually applies in two separate cases. It applies when tax is not paid along with the return as required by section 10(3), or it applies when after the assessment has been made and there is a failure to pay the tax. As pointed out by the learned counsel for the Commissioner of Sales Tax, a default arising by reason of dishonour of a cheque is a much earlier default which can be detected almost immediately; it does not require completion of the assessment before a penalty can be imposed."

23. We are in agreement with the aforesaid observations and, in our opinion, the sales tax authorities were wrong in levying penalty under section 11(1) in addition to the penalty which has been levied under section 11(3a).

24. This takes us to the next penalty which has been levied under section 22-A. The said provision reads as under :

"22-A(1). If the Commissioner or any person appointed under sub-section (1) of section 3 to assist him, in the course of any proceedings under this Act is satisfied that a dealer has concealed the particulars of his sales or has furnished inaccurate particulars of his sales and has thereby returned figures below the real amount, he may, after giving the dealer a reasonable opportunity of being heard, direct that the dealer shall, in addition to the tax payable by him under this Act, pay, by way of penalty, a sum not exceeding one and a half times the amount of tax which would have been avoided if the figures returned by the dealer were accepted as correct."

25. The bare reading of the aforesaid provision shows that penalty can be levied if the dealer has concealed the particulars of his sale or has furnished inaccurate particulars of his sale which has resulted in his returning figures below the real amount. The quantum of penalty which can be levied is one and half times are amount which would have been avoided if the figures returned by the dealer were accepted as correct.

26. It appears to us that concealing of the particulars, referred to in section 22-A must be such which results in the dealer trying to show turnover less than what it actually was. Similarly, furnishing of the inaccurate particulars must be such which, if the particulars had been accepted, would have resulted in an under-assessment. The words "real amount" referred to in section 22-A must necessarily mean the taxable turnover or the amount on which tax could be levied. In the present case, what has happened is that the dealer, admittedly, did not show sales tax separately. A consolidated bill used to be given to the customers. The Financial Commissioner has held as a fact that admittedly the dealer deducted from his gross turnover the amount of sales tax from consolidated price charged by him from the customers on the sale of the country liquor. It is further observed that "what the dealer has charged was the price of the goods sold by him. He reduced this price by the amount of sales tax and then paid the tax on the reduced turnover". In our opinion, even though the dealer has been assessed on the consolidated amount as shown in the cash memos, and his turnover has been enhanced to that extent, nevertheless what was in fact happened is that the amount of sale consideration included the element of sales tax. This has been accepted by the Financial Commissioner when he observes that admittedly the consolidated price charged by the dealer included the amount of sales tax. We are conscious of the fact that in the assessment proceedings the gross turnover, including the amount of sales tax realised by the dealer from its customers, has been subjected to tax. Nevertheless, it is well-settled that penalty proceedings are independent of the assessment proceedings. It is open to the dealer to show, independently of the assessment proceedings, that a particular amount was not taxable or that he had not furnished any inaccurate particulars. Though, whether inaccurate particulars were furnished or not is usually a question of fact in the present case the fact, as found by the Financial Commissioner, is that the dealer charged a consolidated price which included therein the amount of sales tax. It is further found as a fact that in the returns which were filed by the dealer the price was reduced by the price of sales tax and the tax was paid on the reduced turnover. In other words, the tax was paid on the actual consolidated amount of the sale price. This being so, the provisions of section 22-A were clearly not attracted to the present case. No inaccurate particulars were furnished which have resulted in the furnishing of the sale figures below the real amount. Even if it was assumed that no element of means read is required for the applicability of section 22-A, it does appear to us that in the present case the facts, as found, do not show that the essential ingredients for the levy of penalty under section 22-A were present. On a reading of section 22-A, it seems that in order to attract the application of that section, all that has to be determined is whether there was any concealment of particulars or whether inaccurate particulars had been furnished which has resulted in the returning figures below the real amount. The element of means read is not included in section 22-A. The absence of means read may be a relevant circumstance for determining as to the amount of penalty which may be leviable but if the ingredients of section 22-A are satisfied then a penalty has to be levied. In the present case, however, we find that the ingredients of section 22-A were not attracted.

27. For the aforesaid reasons, we answer question Nos. (i), (ii) and (iv) in favor of the dealer and question No. (iii) in favor of the department. In view of our answer to question No. (iv) in favor of the dealer, then notwithstanding our answer to question No. (iii) against the dealer, the effect would be that no penalty under section 22-A would be leviable. There will be no order as to costs.

28. References answered accordingly.