TMI Blog1991 (4) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (6) of section 45 of the Gujarat Sales Tax Act, 1969, in the assessment proceedings before the learned Sales Tax Officer and the learned Assistant Commissioner of Sales Tax, relating to the assessment period from May 6, 1970 to March 31, 1971? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the financial stringency pleaded for getting extensions of time and/or instalments for payment of sales tax is not "reasonable cause" to claim immunity from the penalty provided by section 36(3) of the Bombay Sales Tax Act, 1959 or section 45(5) of the Gujarat Sales Tax Act, 1969? The applicant is a limited company engaged in the business of manufacturing the items of glass. It was a registered dealer under the provisions of Bombay Sales Tax Act, 1959, as well as under the Gujarat Sales Tax Act, 1969. The applicant did not make the payment of dues on account of sales tax within due time for any of the periods, namely, January 1, 1967 to March 31, 1967, April 1, 1967 to March 31, 1968, April 1, 1968 to March 31, 1969, April 1, 1969 to March 31, 1970 and April 1, 1970 to May 5, 1970. There is no dispute about the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax as required by sub-section (3) of that section or where in the case of a dealer the amount of tax assessed or reassessed for any period under section 33 or section 35 exceeds the sum already paid by a dealer in respect of such period prior to such assessment or reassessment by more than twenty per cent of the sum so paid, the dealer shall be deemed to have failed to pay the tax to the extent of the difference between the amount payable as aforesaid and the amount paid and the dealer shall pay by way of penalty on the amount of difference a sum calculated in accordance with the provisions of sub-section (3) and the provisions of sub-section (3) shall so far as may be apply thereto." Section 45(5) and 45(6) of the Gujarat Act: "45(5). If a dealer does not, without reasonable cause, pay tax within the time he is required by or under the provisions of this Act to pay it, he shall, subject to the provisions of sub-section (4) of section 65, pay by way of penalty, in addition to the amount of tax, a sum equal to- (a) one per cent of the amount of tax per month for the first three months, after the last date by which he should have paid that tax, and (b) one and one-hal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and not under section 36(3A) of the Bombay Act. According to Mr. Joshi sub-section (3A) of section 36 is more onerous and therefore while invoking penalty jurisdiction reference ought to have been made in the notice to subsection (3A) of section 36 and not to sub-section (3) of section 36 of the Bombay Act. Therefore, he submits that because of wrong mention of sub-section in the notice the ultimate order of penalty passed by the Sales Tax Officer is vitiated and is required to be set aside. We are afraid we cannot accept such a specious contention raised on behalf of the applicant. Firstly, it may be noted that mere wrong mention of provision of the statute in show cause notice would not, as such, vitiate the order passed, if there is power in the authority to pass the order under other provisions of the statute. In the case of Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal reported in AIR 1983 SC 537 notice was issued under section 260(1)(a) of the Bombay Provincial Municipal Corporations Act, 1949, in respect of the unauthorised construction. The court found that in view of the fact that the construction was not made by the noticee but was in existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable cause/causes because of which it committed default in payment of tax. Therefore, it is the case where not only opportunity is given to the applicant to show cause, but pursuant to the said opportunity the applicant has appeared and has shown cause for default in payment of tax within the stipulated time. We, therefore, find that it is not a case where by wrong mention of sub-section of section 36 any prejudice is caused to the applicant or that the applicant is in anyway, misdirected. The object of issuing notice under section 36(3) and sub-section (3A) is that of providing opportunity to the assessee to show reasonable cause for default in payment of tax within the stipulated time. That being the very object of issuance of notice and the applicant having already disclosed his defence or having already shown cause for default in payment of tax we do not think wrong mention of sub-section of section 36 in notice would vitiate the entire penalty proceedings so as to make the order of penalty passed by the Sales Tax Officer unlawful. We are, therefore, of the opinion that the orders of penalty were not, in anyway, vitiated because of wrong mention of subsection of section 36 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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