TMI Blog1978 (8) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... on their behalf. Also the returns for the quarters ending 30th June, 1973, and 30th September, 1973, were filed late. Consequently, show cause notices under section 46 of the Act were served upon the petitioner-firm. In compliance therewith the manager of the firm appeared and represented its case. However, the Assessing Authority, Sirsa, by its order dated 5th April, 1976, vide annexure P-1, imposed a penalty of Rs. 10,000 upon the petitionerfirm. 3.. It is not in dispute that the aforesaid order of the Assessing Authority is appealable though the petitioner-firm did not apparently resort to that remedy. Mr. Dogra, however, frankly conceded that so far as this writ petition is concerned the matter is confined purely to the legal issue of the vires of section 46 of the Act. For facility of reference, therefore, this has first to be set down: "Section 46. If a dealer fails, without sufficient cause, to comply with the requirements of the provisions of sub-section (2) of section 25, the Commissioner or any person appointed to assist him under sub-section (1) of section 3 may, after giving such dealer a reasonable opportunity of being heard, direct him to pay by way of penalty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it is to be done is to be prescribed by the rules made under the Act by virtue of section 2(i). It is not in dispute that the Haryana General Sales Tax Rules, 1975, have been duly framed under the Act. The registered dealers are then enjoined by subsection (3) of section 25 to deposit the tax due in the prescribed manner in the Government treasury or the Reserve Bank of India or the State Bank of India and obtain a receipt therefor from such treasury or bank. A reference to section 25(2) would then show that every registered dealer is bound to furnish the sales tax returns by such dates and to such authority as may be prescribed and along therewith he must attach the receipt for the amount of tax deposited. No detailed reference is necessary to sub-section (4) of section 25, which pertains to the filing of the revised returns which may become necessary on the discovery of any omission or error in an earlier return. The material provision herein then is sub-section (5), which penalises the failure to pay the tax as required by the further condition that such default would involve the payment of simple interest therefor at the rates specified. As is plain, section 46 then separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in itself prescribes a variety of safeguards. Expressly it lays down that penalty is to be imposed only if the default has been made without sufficient cause. Further it conforms with the requirements of natural justice by providing that the delinquent dealer must be given reasonable opportunity of being heard and it is thereafter only that the penalty within the-narrow range prescribed by the legislature has been left to the discretion of the Commissioner or his delegate. 8.. It is then to be noticed that the discretion herein has been vested by the legislature in no ministerial or commonplace officer but in the Commissioner himself or a person appointed to assist him. A reference to section 3(1) would show that the State Government alone is entitled to appoint the Commissioner as also the persons to assist him. It is obvious that the Commissioner under the Act is a high-ranking authority. In innumerable decisions of the final court it has been held that where discretion has been vested in the Government itself or its high-ranking officials that by itself would be a material factor for upholding the constitutionality of a provision. 9.. When pressed, the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is directed against the abuse or the temptation of the dealers to keep back the tax due as money in their hands without the payment of interest. It was the learned counsel for the petitioner's own stand that herein the legislature has not left any discretion to any authority and the payment of interest in case of default in the deposit of tax is more or less automatic. 12.. The provisions of section 47 of the Act, however, are of an entirely different nature and operate in an altogether different field. The imposition of penalty thereunder on the failure to pay the tax due is neither automatic nor inevitable. Herein the Commissioner is vested with the discretion to levy the penalty and it is plain that the exercise of the power is in any case quasi-judicial in nature. The section in terms provides for affording to the dealer a reasonable opportunity of being heard before any orders adverse to his interest are passed. The quantum of the imposable penalty is itself limited and is not to exceed one and a half times of the amount of tax which may be assessed against him under the law. The penalty provisions are obviously discretionary and would clearly be imposed only for good and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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