TMI Blog1992 (8) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, by his order dated September 24, 1973. By the said order, in addition to the amount of tax due which was determined at Rs. 1,42,249.02, penalty of Rs. 45,000 was also imposed on the petitioner under section 36(2)(c) of the Act for non-payment of the tax with the return. On appeal, the order, so far as it related to imposition of penalty of Rs. 45,000, was set aside by the Assistant Commissioner of Sales Tax (Appeals), Eastern Division, Nagpur, by his order dated September 26, 1975. The Assistant Commissioner held that the order had been passed in violation of principles of natural justice and there was total non-application of mind by the Sales Tax Officer and, as such, the same could not be sustained. The imposition of penalty was, held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued a fresh show cause notice. The petitioner showed cause and objected to the proposed action of the Sales Tax Officer. The Sales Tax Officer, however, by his order dated July 30, 1982, for the third time levied the penalty of Rs. 45,000 on the petitioner under section 36(2)(c), Explanation 1 for the very same period and the very same alleged default for which penalty had been levied on earlier two occasions and set aside by the appellate authorities. This time, the petitioner did not go in appeal but challenged the order directly before this Court by filing the present writ petition under article 226 of the Constitution. 3.. We have carefully considered the facts of the case. It is not necessary for the present purpose to go into the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form setting out the various powers which can be exercised by the appellate authorities in appeals (both first appeal and second appeal) against different orders was introduced by the Maharashtra Act 42 of 1971. Prior to that, this sub-section read as follows: "(6) Subject to such rules of procedure as may be prescribed, an appellate authority may pass such order on appeal as it deems just and proper." 4.. Thus, prior to 1971, the powers of the appellate authority were expressed in widest possible terms. No distinction was made on the basis of the nature of the order appealed against. But in the existing sub-section (6) which applies since 1971, the various powers that can be exercised in appeal against an order of assessment and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the appellate authority while disposing an appeal against an order of penalty cannot set aside the penalty and refer the case back to the assessing authority to make a fresh order of penalty. 5.. A question then arises whether such a power can be inferred as "inherent power " of the appellate authority. The answer may be in affirmative in a case where the powers are not set out in details as in this case but expressed in wide or broad terms as was the case prior to 1971 or as is the case even today in case of appeals against orders other than orders of assessment or orders of penalty or interest. As earlier stated the powers of the appellate authority in an appeal against an order of assessment and in an appeal against an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, liable to be quashed. 6.. The matter may still be looked into from one more angle. Even assuming that the appellate authority had the power to set aside the order of penalty and to remit the same to the assessing officer for making a fresh order in accordance with the directions given by it, then also the impugned order of penalty cannot be sustained as admittedly no such direction had, in fact, been given in the instant case by the appellate authority while setting aside the order of penalty. In the absence of any such direction in the order, the Sales Tax Officer had no power to take up the matter again and to pass a fresh order. The order, therefore, cannot be sustained on that count also. 7.. In the result, the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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