TMI Blog1995 (2) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973. No appeal or revision was filed by the assessee against the above order of assessment. 3.. After more than one and half years of the completion of the assessment, the Assistant Commissioner of Sales Tax (Administration) issued a notice dated January 24, 1977 to the assessee purporting to be a notice under section 55 or 57 of the Act. By the said notice, the assessee was informed that it was proposed to impose a penalty of Rs. 7,500 under section 36(2)(c) of the Act for knowingly furnishing inaccurate particulars of transactions liable to general sales tax ("the GST") by revising assessment order under section 57 of the Act. On the very same day, another notice was also issued by him to the assessee-company asking it to show cause why penalty should not be levied on him under section 36(2)(c) of the Act for the period April 1, 1972 to March 31, 1973, for knowingly furnishing inaccurate particulars of transactions specified therein liable to the GST. 4.. In pursuance of the above notices, the assessee appeared before the Assistant Commissioner of Sales Tax (Administration) and objected to the issue of both the notices on the ground, inter alia, that no penalty having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 57 is wide enough to enable him to impose penalty in a case where the authorities subordinate to him had failed to do so. The said power, according to the learned counsel, can be exercised in a case where penalty had not been imposed by the subordinate authority under section 36(2) of the Act on the presumption that such authority had decided not to impose penalty. We have given our careful consideration to the above submissions of Shri Desai, for the Revenue. However, on a reading of section 57 and section 36(2) of the Act, we find it extremely difficult to accept the same. Section 57 of the Act, which confers revisional powers on the Commissioner, so far as relevant, reads as under: "57. Revision.-(1) Subject to the provisions of section 56 and to any rules which may be made in this behalf,- (a) the Commissioner may, of his own motion, call for and examine the record of any order passed (including an order passed in appeal) under this Act, or the Rules made thereunder by any officer or person subordinate to him and pass such order thereon as he thinks just and proper." 6.. It is clear from a plain reading of the above section that the power vested in the revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax due from the dealer on the basis of such returns. (3) If the Commissioner is not satisfied that the returns furnished by a registered dealer in respect of any period are correct and complete, and he thinks it necessary to require the presence of the dealer or the production of further evidence, he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his returns, or to produce such evidence as is specified in the notice. On the date specified in the notice, or as soon as may be thereafter, the Commissioner shall, after considering all the evidence which may be produced, assess the amount of tax due from the dealer. (4) If a registered dealer fails to comply with the terms of any notice issued under sub-section (3), the Commissioner shall assess, to the best of his judgment, the amount of tax due from him. ...................... (7) Any assessment made under this section shall be without prejudice to any penalty, or prosecution for an offence, under this Act." Section 36(2) of the Act deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed only to revise any order passed under this Act by any authority subordinate to the revisional authority. In the instant case, there is no order passed under section 36 of the Act by any authority which could have been revised by the revisional authority under section 57 of the Act. No order, has therefore, been passed by the revisional authority under section 57 of the Act. Nor the revisional authority has revised the order of assessment under section 33 of the Act. Had it done so, it could have also levied penalty under section 36(2) of the Act while passing its order in revision of the order of assessment. But that is not the case here. In fact, in the instant case, the Commissioner has issued notice for imposition of penalty under section 36(2) of the Act independent of any revisional proceedings. In our opinion, the Commissioner could not have done so, because the admitted position in this case is that he was not exercising any power of revision. He was not passing any order in revision against any order passed by any authority subordinate to him and hence the imposition of penalty under section 36(2) of the Act was not "while passing any order in revision." Power under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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