TMI Blog2011 (2) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court on the issue. Thus imposition of penalty is quashed and set aside. Any deposit made by the Petitioner in pursuance of the order(s) aforesaid shall be refunded and/or adjusted towards the current/future liability of the Petitioner - Tax Cases No. 1 of 2008, Misc. Appeal No. 131 of 2008 - - - Dated:- 1-2-2011 - REKHA MANHARLAL DOSHIT C.J. AND JYOTI SARAN J. J.N. Sahay and S. K.P. Sinha for the petitioner Piyush Lal, A.C. to A.A.G.-1, for the respondent JUDGMENT Tax Case No. 01 of 2008 has been filed by the Petitioner under Section 48(2)(b) of the Bihar Finance Act 1981, being aggrieved by the order dated 29* September, 2008 passed in Rev. Case No. REF-PT-01/2005 by the Commercial Taxes Tribunal, Bihar, Patna by which the prayer made by the Petitioner for reference of the questions of law framed by it, to this Court, arising from the judgment of the Tribunal rendered in Rev. Case No. PT-22 of 2004 dated 6th October, 2004 has been rejected. Misc. Appeal No. 131 of 2008 filed under Section 79 (2)(i) of the Bihar Value Added Tax Act, 2005 is directed against the order dated 1st November, 2007 passed by the Commercial Taxes Tribunal, Bihar, Patna in Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the said exercise. The said fact is also manifest from the order of assessment dated 28th October, 2002 passed by the Assistant Commissioner, Commercial Taxes, Special Circle, Patna placed at Annexure-1 of the Tax case. The Assessing Officer even while admitting that the entire tax stood paid by the Petitioner, has proceeded to impose penalty in purported exercise of power vested under Section 16(9) of the Act of 1981, while rejecting the submissions of the Petitioner in support of delayed payment of tax, inter alia on the following grounds:- (a) No extension of time had been demanded by the Petitioner for the delayed payment of tax prior to the prescribed date. (b) The difference of tax had not been deposited by the Petitioner at the time of submission of annual returns, the revised returns had not been filed and that the difference of tax amount had been deposited on own volition by the Petitioner. (c) The deposit of the tax upon establishment of the liability and the non-submission of the revised returns cannot provide succour to the Petitioner from penalty. The assessment order-cum-order of penalty was put to challenge in appeal by the Petitioner before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnal Audit report, it immediately deposited the same without any delay. It was submitted that since the report of the Audit was received much after the expiry of the last date for filing revised returns which for the relevant period would fall on 31st July, 2000, there was no occasion for the Petitioner to file any revised returns or a revised annual returns. It is submitted that under the provisions of the Act of 1981 there is no provision under which the Petitioner could have sought filing of a delayed revised returns. Learned Counsel submits that as the amount of tax in question stood deposited much prior to the date of assessment proceeding for the period in question, there was no occasion for the Assessing Authority to impose the penalty moreso, where the Assessing Authority himself has noticed the deposit of tax by the Petitioner. Learned Counsel in support of his submission referred to a Constitution Bench judgment of the Supreme Court rendered in the case of J.K. Synthetics Ltd. v. Commercial Taxes Officer (1994) 94 STC 422. The Constitution Bench while overruling the majority view in the case of Associated Cement case reported in (1981) 48 STC 466 and affirming the minorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Learned Counsel submits that admittedly tax were found due and were deposited belatedly and which sole factor was sufficient to invite penalty under Section 16(9) of the Act of 1981. Learned Counsel referring to the provisions underlying Section 16(9) of the Act of 1981 submits that the provision envisages the cases of the present kind in which admittedly the taxes were found due even after the prescribed date fixed for deposit of the same, thus entailing penalty. He submits that the Assessing Authority as also the Tribunal have gone into the details of the explanation advanced on behalf of the Petitioner in support of the belated deposit of the tax due and not having found the same convincing, have upheld the imposition of penalty which requires no interference by this Court. Learned Counsel submits that the very admission by the Petitioner that the deposit of tax was after the date prescribed under the Act of 1981 and the Rules framed thereunder, is sufficient to uphold the order of penalty as affirmed by the superior Statutory Authorities under the Act. We have heard learned Counsel for the Petitioner and the State at length and have perused the materials available on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Statutory Authorities discharging such functions. We can do no better than to reproduce an extract of the judgment of the Supreme Court rendered in the case of Hindustan Steel Ltd. v. State of Orissa reported in 25 STC 211 at page 214:- Under the Act penalty may be imposed for failure to register as a dealer: Section 9(1) read with Section 25(l)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for the Revenue Authorities to detect the omission and the shortage in the amount of tax paid by the Petitioner but as soon as the error was discovered in the Petitioner's Regional Office, it was corrected voluntarily and the balance amount, being a small fraction of the total tax liability for the assessment period in question, was also paid on the same day the corrected return was filed. He submitted that under these facts and circumstances the imposition of penalty was wholly unjustified and untenable in law. In support of the submission, he relied upon Supreme Court decisions in:- (i) Hindustan Steel Ltd. v. the State of Orissa (1970) 25 STC 211, and (ii) The Cement Marketing Co. of India Ltd. v. The Assistant Commissioner of Sales Tax, Indore and Others (1980) 45 STC 197. He also relied upon a Bench decision of this Court in an earlier case by the same Petitioner reported in 2003(3) PLJR 561 (Paragraphs 19 to 21). 12. Dr. Debi Pal further contended that in the facts of the case the provisions of Section 16(9) of the Act had no application and the impugned penalty was not sustainable in law. Dr. Pal submitted that any penalty under Sub-section 9 of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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