TMI Blog1983 (7) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of penalty under section 17(3), the Tribunal has the power to initiate proceedings for penalty under section 43(1) of the State Act suo motu or at the request of the Department? (2) Whether under the facts and circumstances of the case, when the lacuna in the fulfilment of the requirement of rule 19(2) of the Rules, viz., that the revised return should be for each quarter and it should be accompanied by explanatory note, was duly cured by its admission and the revised return was considered for the purpose of assessment, it was still open to the Tribunal to hold that the assessment has not been made on the basis of the revised return? (3) Whether under the facts and circumstances of the case, imposition of penalty under section 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee was that the sales were made on the understanding that declaration on forms XII and XII-A would be forthcoming, and the assessee did not recover sales tax-on the said sales. However, the purchasing mills did not furnish the requisite declarations for certain firms. The assessee thereupon submitted revised returns and paid the requisite tax. The assessing authority, taking into consideration the explanation of the assessee, imposed penalty of varying amounts in respect of different years under section 43 of the State Act. 5.. The assessee preferred appeals against the order of the assessing authority imposing penalty under section 43 of the State Act. The appellate authority held that the penalty under section 43 of the State Act was un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirements of rule 19(2) of the Rules and the assessment was not based on the returns but on the account books of the assessee. The Tribunal remitted the cases to the Deputy Commissioner of Sales Tax for fresh disposal of the appeals preferred by the assessee and for determining whether the penalty imposed on the assessee by the assessing authority was reasonable and justified. 8.. The assessee submitted applications to the Tribunal for referring questions of law arising out of the orders of the Tribunal and it is at the instance of the assessee that the aforesaid questions of law have been referred by the Tribunal for the opinion of this Court. 9.. We have heard the learned counsel for the parties. 10.. Re: Question No. (1): The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal had no power to reopen the same and to remand the cases to the first appellate authority for determination of the fact whether the penalty imposed by the assessing authority under section 43(1) of the State Act was reasonable and justified. Section 43 of the State Act did not confer such power on the Tribunal. The learned Government Advocate appearing for the Department contended that the language of section 43 of the State Act is sufficiently wide to empower the Tribunal to impose penalty. He contended that the appeals preferred by the assessee against the order of the first appellate authority imposing penalty under section 17(3) of the State Act were pending before the Tribunal and in the course of the said proceedings the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was whether the orders of the first appellate authority imposing penalty under section 17(3) of the State Act were justified. The orders of the first appellate authority setting aside the penalty imposed by the assessing authority under section 43 of the State Act, having become final it was not open to the Tribunal in second appeals to reopen the said matter. There is no force in the contention of the learned Government Advocate appearing for the Department that the language of section 43 is sufficiently wide to empower the Tribunal to initiate proceedings for imposition of penalty in the circumstances of the case because the appeals preferred by the assessee before the Tribunal come within the purview of proceedings pending before it and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 44 of the State Act which provides for referring questions of law for the opinion of this Court. 14.. Section 38(6), as stated above, is not made subject to the provisions of section 43 of the State Act and therefore, even if the language of that section is wide, it does not confer power on the Tribunal to reopen a matter which has become final under section 38(6) of the State Act. In the present case as stated above the orders passed by the first appellate authority setting aside the penalty under section 43 of the State Act became final and the appeals preferred by the assessee before the Tribunal were restricted to that part of the orders of the first appellate authority which related to the imposition of penalty by that autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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