TMI Blog1974 (6) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the four returns filed by the respondent-assessee, it paid tax in accordance with these returns. The total amount of tax thus paid by it comes to Rs. 4,295.94. The last payment was made along with the last return on 12th December, 1969. 3.. Thereafter on 15th December, 1970, the assessee was called for assessment. On that day he paid the further amount of Rs. 1,500 by producing a treasury challan which was accepted by the concerned Sales Tax Officer. 4.. Thereafter on 31st December, 1970, the Sales Tax Officer carried out the assessment and found that the amount of Rs. 5,924.84 was payable by the respondent-assessee as total tax on the total turnover of sales during the year in question. Thus, according to the Sales Tax Officer the amount of Rs. 4,295.94 which was paid by the respondent-assessee along with his four returns was found short of the amount of tax payable as a result of the assessment by Rs. 1,628.88. The difference between the tax paid along with the return and the tax which was found payable being thus more than 20 per cent of the amount of Rs. 4,295.94, the Sales Tax Officer thought that the provisions of sub-section (3A) of section 36 of the Act were attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (5) of section 55 pay by way of penalty, in addition to the amount of tax, a sum equal to- (a) one per cent of the amount of tax for each complete month for the first three months, after the last date by which he should have paid that tax, and (b) one and one-half per cent of the amount of tax for each complete month thereafter, during the time he continues to make default in the payment of tax: Provided that the Commissioner may, subject to such conditions as may be prescribed, and an appellate authority in an appeal under section 55 may, remit the whole or any part of the penalty payable in respect of any period. (3A) Where a dealer has failed to pay the whole of the amount of tax as required by sub-section (2) of section 38 or the whole of the extra amount of tax as required by sub-section (3) of that section or where in the case of a dealer the amount of tax assessed or reassessed for any period under section 33 or section 35 exceeds the sum already paid by a dealer in respect of such period prior to such assessment or reassessment by more than twenty per cent of the sum so paid, the dealer shall be deemed to have failed to pay the tax to the extent of the differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout full payment therefor, or (ii) assessed or reassessed for any period under section 33 or section 35 less any sum already paid by the dealer in respect of such period or assessed under section 14C or 41A, and (b) the amount of penalty (if any) levied under section 36 or 37, and (c) the sum (if any) forfeited to the State Government under section 37, shall be paid by the dealer or the person liable therefor into a Government treasury by such date as may be specified in a notice issued by the Commissioner for this purpose, being a date not earlier than thirty days from the date of service of the notice: Provided that the Commissioner or an appellate authority in an appeal under section 55 may, in respect of any particular dealer or person, and for reasons to be recorded in writing, extend the date of payment, or allow him to pay the tax or penalty (if any) or the sum forfeited, by instalments. (5) Any tax, penalty or sum forfeited, which remains unpaid after the date specified in the notice for payment, or after the extended date of payment, and any instalment not duly paid, shall be recoverable as an arrear of land revenue." A bare perusal of this section shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee prior to the actual assessment are such that the tax, which is finally assessed, is found to be more than 20 per cent thereof. The revenue in this case wants to disregard the payment of Rs. 1,500 made by the assessee on 15th December, 1970, on the ground that what is to be seen for the purpose of applying the 20 per cent test is the payment of tax made by the assessee along with the return, and not any other payment which is made subsequent thereto. We do not find any justification for such a view from the language which the legislature has preferred to use in sub-section (3A). This language is quite simple and plain and does not admit of any ambiguity or any interpretation. The sub-section refers to the "sum already paid". It does not say that it should be the sum "already paid along with the returns". In other words, it does not qualify or limit the meaning of the wide range of the expression "sum already paid". It cannot be disputed that the sum of Rs. 1,500 paid by the assessee on 15th December, 1970, was the sum "already paid prior to" the assessment in question. Therefore, in order to determine what was the sum paid prior to the assessment, all those amounts of taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguage employed by the legislature in this explanation that it has made the total income returned by an assessee as its basis for the purpose of deciding whether it is less than 80 per cent of the total income assessed. The language of this explanation is, therefore, quite unequivocal in emphasising that it is the return which is to be taken into account in order to determine whether the penalty contemplated by it is attracted or not. This provision of the income-tax law was before the legisnature and yet the legislature has preferred to use the language which in no way brings about an idea that only the tax paid by an assessee at the time of his return should be taken into account in order to see whether the penalty contemplated by the third category of cases referred to in subsection (3A) of section 36 is attracted. 11.. Under these circumstances, we find that the view taken by the Tribunal is correct and, therefore, our answer to the question which is referred to us is in the affirmative. The reference is accordingly disposed of. The petitioner-State shall bear the costs of the respondent-assessee in this reference. Reference answered in the affirmative. - - TaxTMI - T ..... 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