TMI Blog1984 (3) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... r had agreed to get his claim for deduction under the proviso to section 9(1) of the Bombay Sales Tax Act, 1953, rejected unconditionally?" Although, in the question sub-section (1) of section 9 has been referred to that is an apparent error, as there is no such sub-section. What is referred to clearly is proviso (1) or first proviso to section 9 of the Bombay Sales Tax Act, 1953. The question is, therefore, by consent re-framed as follows: "Whether on a proper interpretation of the letter dated 28th July, 1965, and the arguments made before the Deputy Commissioner, the Tribunal was correct in holding that the dealer had agreed to get his claim for deduction under the first proviso to section 9 of the Bombay Sales Tax Act, 1953, rejected unconditionally?" 3.. The facts giving rise to these references are as follows: The applicants are a partnership firm which carried on the business of buying and selling provisions at Nasik Road. The applicants are registered dealers under the said Act. In respect of the assessment period 1st April, 1954, to 31st March, 1955, with which we are not concerned in these references, the assessees were assessed as registered dealers under the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the case and it is common ground that the same was fully argued and it was dismissed by the Deputy Commissioner. We are not concerned with the order of the Deputy Commissioner dismissing that revision application, because the references arising from that decision and the decision of the Sales Tax Tribunal thereon are Sales Tax Reference No. 6 of 1971 and Sales Tax Reference No. 7 of 1971 which have both been disposed of by separate judgments. As far as revision applications to the Deputy Commissioner in respect of the assessment periods 1st April, 1955, to 31st March, 1956, and 1st April, 1956, to 31st March, 1957, respectively are concerned, it appears that the said applications were heard by the Deputy Commissioner on 26th July, 1965. At that time, Mr. Surte, learned counsel who appeared on behalf of the assessee-dealers, made an oral offer that if the post-assessment penalty which was levied by the Assistant Commissioner was remitted in full, in order to put an end to the proceedings, the assessees were agreeable to pay the entire amount of tax to which they were assessed. One partner of the assessees-firm was also present at that time. It appears that the Deputy Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed was regarding disallowance of section 9(1) claim. It is contended that the claims may be disallowed, but post-assessment penalty be waived". These notes have been initialled by the representative from the department and by Mr. Surte and underneath the same are the words "order written" with the initial of the Deputy Commissioner and the date mentioned as 16/5/. By his order dated 16th June, 1966, the Deputy Commissioner dismissed the aforesaid revisional applications. In his order, the Deputy Commissioner has recorded that the main point which was common in all the three revision applications before him was regarding disallowance of the dealers' claim under section 9(1) and (2) of the said Act. The actual claim was under the first proviso to section 9 of the said Act. We have however set out as aforesaid, because the Deputy Commissioner has referred to the claim under the first and second sub-sections of section 9. The Deputy Commissioner has gone on to state as follows in paragraph 5 of his order which is relevant for our purposes: "The only point now for all the three years is regarding the claim under section 9(1). The learned Advocate explains that when the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the first proviso to section 9 as held by the Deputy Commissioner but was conditional on the postassessment penalty being waived and that as the Deputy Commissioner had not waived the said penalty, he was bound to decide on merits the claim under the first proviso to section 9 which he had failed to do so. The Tribunal rejected these contentions holding that the dealers had agreed to get their claim for deduction under the first proviso to section 9 rejected unconditionally but did not agree to the post-assessment penalty. It is from this decision of the Tribunal that the aforesaid question has been referred to us for determination. 4.. The contention of Mr. Surte was that the offer made by him on behalf of the dealers to the Deputy Commissioner was clearly a conditional offer to give up the claim for deduction under the first proviso to section 9 of the said Act, provided the Deputy Commissioner was willing to give up the post-assessment penalty levied and leviable in respect of the aforesaid assessment periods and it was urged by him and this was sufficiently clear from the aforesaid letter dated 28th July, 1965, addressed by him to the Deputy Commissioner and that at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as urged by Mr. Jetley that this offer must be regarded as an unconditional offer, because it was not within the power of the Deputy Commissioner to give up the penalty completely, as suggested in the letter and hence the dealer could not have seriously made that offer. In our view, this contention cannot be accepted. The the offer was coupled with the conditions which was not reasonable or one which could not have been accepted in law completely, would not render unconditional the offer which was in terms made on a condition. If it was not possible to accept that condition, the only result would be that the said offer must be rejected. But where an offer is coupled with conditions which cannot be accepted fully, the offer cannot be treated as an unconditional offer merely on that count. The offer contained in the said letter was in terms conditional. This is clear from the plain language setting out the offer and the surrounding facts. 7.. Coming next to the arguments on 10th May, 1966, and the notes of proceedings prepared by the Deputy Commissioner which have been initialled by Mr. Surte, we must appreciate, in the first instance, that these arguments could not have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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