TMI Blog1978 (11) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Revenue Department allowing him the facility of instalment payment of sales tax and employees provident fund at the rate of Rs. 5,000 each (total monthly payment of Rs. 10,000). The petitioner has averred that the instalments as permitted by exhibit P2 order were paid from 1972 and the arrears were liquidated by July, 1974. He has produced exhibit P3 statement showing the payments made and the dates on which they were made. The averments made in this respect have not been controverted. Exhibits P4 to P7 orders were passed by the Sales Tax Officer imposing penalty on the writ petitioner for default of payment of the arrears of sales tax. By exhibit P4, a penalty of Rs. 11,091.98 was imposed by order dated 29th November, 1973. Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no answer to the plea that it is time-barred. Hence the challenge to exhibit P8 cannot succeed." The challenge to exhibit P8 order is time-barred. But exhibits P5 to P7 revisions, dismissed on 26th July, 1975, were communicated on 18th August, 1975. Limitation is not urged against these orders. 2.. Counsel for the petitioner contended that, in view of exhibit P2 order, which was duly complied with, the penalty was not imposable at all and that exhibits P4 to P7 orders cannot therefore be sustained. It was also represented that by the time of the learned Judge's judgment, the revisions against exhibits P5 to P7 had been dismissed by order dated 26th July, 1975, and communicated on 18th August, 1975. The answer made on the side of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is right in his submission that there is no provision in the Sales Tax Act, which enables the Government to pass an order allowing the benefit of instalment payment to an assessee under the provisions of the Sales Tax Act and in respect of an order of assessment passed by the Sales Tax Officer. The same view seems to have been taken by the Supreme Court in Haji Lal Mohd. Biri Works v. State of U.P.[1973] 32 S.T.C. 496 at 499 (S.C.). under the provisions of section 8(1-A) of the U.P. Sales Tax Act, 1948, which is almost similarly worded. The court observed at page 499: "There is no provision in the Act which makes it obligatory on the part of the Sales Tax Officer to make an assessment in respect of the interest which the amount of sales tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Officer[1973] 32 S.T.C. 429 at 434. The court observed: "The language of section 23(3) appears to make the payment contemplated by the section an absolute liability on the assessee. If the tax assessed is not paid within the time allowed, whatever be the reason for the non-payment, the dealer or other person shall pay, by way of penalty, in the manner prescribed, in addition to the amount due, a sum equal to half per cent of such amount for each month or part thereof, for the first three months, and one per cent of such amount for each month or part thereof, subsequent to the three months. There is no question of the taxing authority exercising any discretion under the statute; no discretion is contemplated or vested in the authority; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has been respecting that order and paying the instalments as required or permitted by the order. We cannot, especially in the absence of any counter-affidavit on the side of the department, easily take it that the department or the Sales Tax Officer was not aware of the existence of such an order or of a sanction for the instalment payments that the assessee made for a fairly long period of 22 months. Whatever that be, in the same spirit of being a stickler for the letter of the statute, counsel for-the assessee argued with force, that if there be no provision in the statute to warrant an order by the Government like exhibit P2, equally, there is no warrant for the officer to draw up a formal order of the type of exhibit P4 (or P5 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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