9911796707
TMI Blog1995 (11) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 1988-89 was served on the petitioner on June 23, 1992. Since there was default in payment, notice was issued to it to show cause as to why penalty shall not be imposed under section 13(5) of the Act as according to the Sales Tax Officer, there was failure to produce evidence of payment during prescribed time. Reply was submitted by the petitioner which was not considered satisfactory, and in view of non-payment, it was held that imposition of penalty was called for and accordingly, a sum of Rs. 38,200 was imposed as penalty. 3.. The learned counsel for the petitioner submitted that in the meantime the assessments made under section 12(8) of the Act and under rule 5 of the Orissa Additional Sales Tax Rules, 1975 (in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary which reads as follows: "Provided also that where as a result of an order passed in an appeal, revision or reference- (i) the assessment with or without penalty under section 12 or 12-A; or (ii) the penalty imposed under sub-section (3) of section 11 or under subsection (3) of section 9-B; or (ii-a) the penalty imposed under sub-section (5) of section 13-AA, or (iii) the interest charged under sub-section (4-a) of section 12, (a) is annulled, the penalty imposed under this sub-section shall be refunded; or (b) is reduced, the penalty imposed under this sub-section shall be proportionately reduced and the excess amount shall be refunded, and all such refunds shall be made in the manner provided under section 14." 7.. Obviously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is influenced by extraneous considerations which it ought not to have taken into account, the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless the decision will be set aside. The position was stated succinctly by Lord Denning in Breen v. Amalgamated Engineering Union (1971) 2 QB 175. Discretion must be exercised honestly and in the spirit of the statute. It is not to be arbitrary, vague and fanciful but legal and regular; to be exercised not capriciously but on judicial grounds and for substantial reasons. Acting under section 13(5) of the Act, the authority has to consider the facts and circumstances of each case. There may be cases where the authority may not impose penalty. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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