TMI Blog1990 (1) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the applicants to the Deputy Commissioner of Sales Tax for condoning the delay in applying for registration. This application was granted and the registration certificate in respect of Pune office was made effective from 1st April, 1966, that is to say, the date of opening of the Pune branch. 2.. In the meanwhile the applicants were furnishing returns at Bombay by including the turnover of sales at their Pune branch in the Bombay returns. This position was regularised for the period from 1st April, 1966, to 31st December, 1970, by giving formal permission to the applicants for filing a consolidated return at Bombay. 3.. In the return submitted to the Sales Tax Officer at Bombay by the applicants for the period 1st January, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Sales Tax. The Assistant Commissioner requantified the penalty and reduced it to Rs. 32,734. 8.. The applicants preferred a second appeal before the Sales Tax Tribunal. The Tribunal held that having regard to the peculiar facts and circumstances the assessee deserved certain remission. The Tribunal observed that the extra demand and the entire delay had arisen due to technicalities. It held that there was no mala fide intention on the part of the assessee to evade or to delay the payment of any tax. The Tribunal however, granted a remission only of penalty in excess of Rs. 20,000. Hence the present reference before us under section 61(1) of the Bombay Sales Tax Act, 1959. 9.. The question referred to us for determination is: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay into a Government treasury, in the manner prescribed, the whole of the amount of tax due from him according to such return along with the amount of any penalty payable by him under section, 36. The applicants were, therefore, required to pay the tax as per their returns before filing the quarterly returns. 12.. The applicants had filed a consolidated return at Bombay for the quarter 1st January, 1971, to 31st March, 1971. Tax as per this return was also paid prior to filing the return. The Sales Tax Officer at Bombay, however, excluded the sales at Pune for the said period while completing the assessment. There was, therefore, no return filed by the petitioners at Pune in respect of the sales at Pune branch for the period 1st January, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the return prior to the filing of the return. The assessee had also applied for determination of the tax under section 52 of the Bombay Sales Tax Act. On such determination and during the pendency of the assessee's appeal to the Tribunal against the determination, the assessee paid the increased tax as per the determination under section 52. The Court held that the provisions of section 36(3) were not attracted because the tax which was shown according to the return was paid in full. The amount which was subsequently paid could not be considered as under or towards the amount of tax due according to that return in question. It was an amount which was paid in anticipation of the amount of tax to which the assessee was going to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law or is found to be guilty of conduct contumacious or dishonest or is proved to have acted in conscious disregard of its obligation. Failure without reasonable cause to pay the tax is an ingredient of the penalty provisions. In our view, looking to the circumstances of the present case, the assessee did have reasonable cause for not paying the tax within time (assuming that they did not pay tax within the time prescribed). Also, as the Tribunal itself has observed, the delay has arisen on account of technicalities and it cannot be said that there was any mala fide intention on the part of the assessee to evade or delay the payment of tax. In these circumstances in our view the Tribunal ought to have remitted the entire penalty payable i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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