TMI Blog1994 (7) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... 56. In course of its business, this firm affected sales in Madhya Pradesh as also outside the State as a result of which it is liable to pay inter-State sales tax under the Central Sales Tax Act. The petitioner was assessed for this purpose from October 19, 1971 to November 5, 1972. Quarterly returns were filed and the tax was deposited. On April 26, 1976, the petitioner furnished revised return and deposited entire tax on the basis of revised return. The revised return was filed before completion of the assessment proceedings and before initiation of penalty proceedings. The assessment order was passed on April 30, 1976, by the Assistant Commissioner, Sales Tax, Ujjain. He issued notice No. 10314 dated November 19, 1976 to the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal before the Board of Revenue. The said appeal was registered as 275-PBR/77. This appeal was allowed (annexure E) and the penalty of Rs. 43,000 imposed under section 17(3) was set aside. The respondent No. 2 (Commissioner of Sales Tax) thereupon filed the application before the Board of Revenue under section 44 of the M.P. General Sales Tax Act requiring the Tribunal to refer the question of law to this Court (annexure F). The Board of Revenue, instead of making reference, as prayed, issued a notice dated August 22, 1984 to the petitioner calling upon it to show cause why the appellate order dated November 26, 1983, should not be rectified (annexure G). The proceedings for rectification were registered as Misc. Case No. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "As regards scope of jurisdiction under section 38(5), we have already come to a conclusion that the appellate authority exercising jurisdiction under section 38(5) in the present case, could not have imposed a penalty but as discussed above, it is clear that the appellate authority had jurisdiction under section 43 to impose penalty for the first time after giving an opportunity to the assessee of being heard and it is not disputed that that opportunity was afforded and notice was issued before the final orders were passed by the appellate authority." 7.. It is thus clear that there was no power to enhance the penalty. 8.. The order passed by the respondent No. 1, is therefore, luculently contrary to law and cannot be sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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