TMI Blog1989 (8) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... 1982, as per annexure 4. In the meanwhile the petitioner being unsuccessful in challenging the order of assessment of tax before the first appellate authority filed second appeal before the Sales Tax Tribunal on August 29, 1980. On the same day he also filed an application before the Commissioner for stay of realisation of tax under section 23 of the Act. The Commissioner granted stay of realisation of tax by order dated December 31, 1980. It is stated at the Bar that the second appeal has been dismissed and the order of assessment of tax has become final. The petitioner has filed this petition under articles 226 and 227 of the Constitution of India to quash the order of the Sales Tax Officer imposing penalty as per annexure 2 and the revisional order of the Additional Commissioner confirming the said order as per annexure 4. 3.. Shri R.B. Roy, learned counsel for the petitioner, contended that since the realisation of the tax had been stayed by the Commissioner on the application filed by the petitioner, he (petitioner) could not be said to have defaulted in payment of the tax and, therefore, no penalty should have been imposed on him. The learned counsel further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es provision regarding stay of realisation of tax only and there is no provision in the statute for stay of realisation of penalty imposed under section 13(5). From the facts discussed earlier, it is manifest that the petitioner had failed to pay the amount of tax demanded from him within the stipulated period of thirty days. Long thereafter on August 30, 1980, the Sales Tax Officer passed the order under section 13(5) of the Act imposing penalty on the petitioner for his default in paying the tax. By that date the petitioner had not obtained. any order of stay of realisation of the amount. Indeed the order of stay was passed by the Commissioner on December 31, 1980, long after the imposition of penalty was made. It cannot therefore be said that on August 30, 1980, when the penalty order was passed there was any order of the Commissioner staying realisation of the tax from the petitioner. No plea was therefore available to the petitioner that the amount of tax had not become due from him. In these circumstances, no exception can be taken to the order passed by the Sales Tax Officer under section 13(5) of the Act in annexure 2 on any ground. Coming to the revisional order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the petitioner. In the case of Om Prakash Agarwal v. Incometax Officer reported in [1967] 66 ITR 175, the Allahabad High Court considering the provisions of sections 221 and 220(6) of the Income-tax Act, 1961, observed that while determining the question whether the assessee is in default or is deemed to be in default in making payment of the tax, the officer must consider not only whether the amount specified in the notice of demand has been paid within the time-limit but also whether the assessee has preferred an appeal and whether the circumstances of the case are such that the assessee should be treated as not being in default, particularly when the assessee has filed an application under section 220(6) for being treated as not being in default. Even after coming to the finding that the assessee is to be deemed to be in default by reason of section 220(4), the officer must yet arrive at a further finding whether the assessee is to be treated as not being in default notwithstanding the default contemplated by section 220(4). The court held that both these steps are necessary before the officer can come to the decision that the assessee is in default and a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner also relied on the decision in the case of Abdul Shakur Umar Sahigara Co. v. Commercial Tax Officer reported in [1968] 21 STC 77, where the Mysore High Court considering the provisions in section 3A of the Mysore Sales Tax Act, 1957, read with section 13 held that the period of time within which the petitioner could pay the tax without committing default was that fixed by the Government and in consequence the notice of the Commercial Tax Officer stood superseded by the order made by Government and instead of the tax becoming due on the expiry of twenty-one days specified in the notice, it became due when the instalments allowed by Government became due. The court further held that although the period of twenty-one days specified in the notice issued by Commercial Tax Officer had expired before Government made their order, the grant of instalments by Government effaced the default emanating from non-compliance with the officer's demand and extended the time for payment. It was only when the payment by instalments allowed by Government was not made, that a default would come into being. On the ratio of this decision, the counsel for the petitioner submitted that in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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