IN THE HIGH COURT OF JUDICATURE AT PATNA TAX CASES No.1 OF 2008 ====================================================== Food Corporation of India, Regional Officer, Patna ………………………………. Appellant Versus The Commissioner of Commercial Taxes, Bihar, Patna ..…………………………… Respondent ====================================================== With MISC. APPEAL No.131 of 2008 ====================================================== Food Corporation Of India , Arunachal Building Exhibition Road, Patna-1 …………………………. Appellant Versus 1. The State Of Bihar 2. The Commissioner Commercial Taxes, Bihar, Patna …………………………. Respondents ====================================================== Appearance : In TAX No. 01 of 2008 For the Petitioner: 1. Mr. J.N. Sahay, Advocate 2. Mr. S.K.P. Sinha, Advocate For the Respondent: Mr. Piyush Lal, A.C. to A.A.G.-1 In MA No.131 of 2008 For the Appellant: 1. Mr. J.N. Sahay, Advocate 2. Mr. S.K.P. Sinha, Advocate For the Respondents: Mr. Piyush Lal, A.C. to A.A.G.-1 ======================================================== CORAM: HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT (Per: HONOURABLE Mr. JUSTICE JYOTI SARAN) 2 01.02.2011 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 29.09.2008 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 6.10.2004, 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 1.11.2007 passed by the Commercial Taxes Tribunal, Bihar, Patna in Review Case No. PT-29 of 2004 whereby the prayer for review of the order passed by the Tribunal in the aforestated Revision case has been refused. With the consent of the parties both these matters have been taken up and have been heard analogous by us with the view to its final disposal. As the issues are common hence for the sake of convenience we shall be referring to the pleading set out in the Tax Case No.1 of 2008. 3 The petitioner is a Corporation established under Section 3 of the Food Corporation Act, 1964 (Act 37 of 1964) with the avowed object and purpose of purchase and distribution of food grains in the States for making it available to the citizens at fair prices. The petitioner is a registered dealer under the Bihar Finance Act, 1981 (hereinafter referred to as the “Act of 1981”) which stood repealed and replaced by the Bihar Value Added Tax Act, 2005 (hereinafter referred to as “Act of 2005”). The petitioner under the provisions of Section 19 of the Act of 2005 continues to be a registered dealer under the said Act. The brief facts giving rise to the present set of cases is that the petitioner is the biggest dealer of food grains in the State having its office and godowns spread over the State and in the period concerned over the then unified State of Bihar which was inclusive of the present State of Jharkhand. The taxes were paid monthly by the petitioner on the basis of the monthly abstract statement, quarterly returns and the annual returns prepared and filed on the basis of the statement received from the local office. After the filing of the statutory returns and abstract statements by the petitioner 4 for the period 1999-2000 the audit referred to certain errors and omissions in the deposit of tax by the petitioner, which report of the Audit was received by the petitioner after 31.7.2000, (incorrectly mentioned as 31.7.2008 in the petition) the last date for filing revised returns in terms of the provisions contained in Section 16 (4) of the Act of 1981. In the circumstances no revised returns could be filed by the petitioner, who however deposited the additional tax in terms of the audit report. The tax so deposited was much prior to the exercise undertaken by the statutory authority under the Act of 1981 for verification of accounts for the purpose of assessment. Even a revised statement of sale had been filed before the said exercise. The said fact is also manifest from the order of assessment dated 28.10.2002 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:- 5 (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 Joint- Commissioner, Commercial Tax, Central Division, Patna giving rise to Appeal Case No. ST-SL -104/2002-03 which was rejected vide order dated 20.12.2003. The revision preferred by the petitioner challenging the orders of statutory authorities giving rise to Rev. Case No. PT-22 of 2004 before the Commercial Taxes Tribunal, Bihar, Patna resulted in partial relief to the petitioner. The Tribunal in its 6 judgment and order dated 6.10.2004 placed at Annexure-3 while remitting the matter to the Assessing Authority on the issue of enhancement of gross turn over, upheld the order of penalty. The attempt of the petitioner to seek reference on the question of law framed by it was negated by the Tribunal vide order dated 29.9.2008 passed in Ref- PT-1/2005 giving rise to the present case. The prayer for review having been rejected under the order dated 1.11.2007 passed in Review Case No. PT-29 of 2004 by the Commercial Taxes Tribunal, Bihar, Patna has given rise to Misc. Appeal No.131 of 2008. As the issue raised in the matters before us strike to the very root of the action of the authorities in imposing penalty, we deem it appropriate to consider and dispose of the matter on merits rather than to relegate the matter to the Tribunal, directing reference on the issues raised by the petitioner. Mr. J.N. Sahay, learned counsel appearing on behalf of the petitioner raised a very short point in support of the issue raised. He submits that the case in hand did not warrant any proceeding in purported exercise of power vested in the authorities under Section 16(9) of the Act of 1981. It was submitted that the pre-requisites to the 7 imposition of penalty as envisaged under Section 16(9) of the Act does not stand satisfied in the case of the petitioner inasmuch as the tax due, was deposited by the petitioner much prior to the assessment proceedings. It was submitted that the circumstances warranting the initiation of proceedings for imposition of penalty as set out in Section 16(9) does not cover the case in hand. He submits that there was no tax due as per the returns filed by the petitioner and since its depots are spread all over the State and during relevant period stood spread over the territory which presently forms the State of Jharkhand, no sooner did the petitioner gather knowledge of pending tax amount on the basis of the internal 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 31.7.2000, 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 8 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. Versus 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 minority view of Justice Bhagwati (as his Lordships then was), held that the minority view laid down the correct law. Learned counsel referred to the following paragraph of the judgment which was a reproduction of the minority view of Justice Bhagwati :- “Bhagwati,J., after referring to sections 3, 7, 10, 11 and 11B of the Act, points out that section 7(2) speaks of “full amount of tax due on the basis of the return” and adds: “…………We must look at the return actually filed by the assessee in order to see what is the full amount of tax due on the basis of such return. It is not the assessed tax nor is it the tax due on the basis of a return which ought to have been filed by the assessee but it is the tax due according to the return actually filed that is payable 9 under sub-section (2) of section 7. This provision is really in the nature of self- assessment and what it requires is that whatever be the amount of tax due on the basis of self-assessment must be paid up along with the filing of the return which constitutes self-assessment. I fail to see how the plain words of sub-section (2) of section 7 can be tortured to mean full amount of tax due on the basis of return which ought to have been filed but which has not been filed.” Learned counsel also referred to a judgment of the Supreme Court rendered in the case of Commissioner of Sales Tax, U.P., Lucknow versus Anoop Wines [(1988) 71 STC 262] in support of his submission that the proposition that a wrong mention of a Section/provision would not invalidate a duly constituted proceedings, does not apply to penal proceedings and since the case of the petitioner did not fall within the parameters set out under Section 16(9) of the Act of 1981 hence the order of penalty as affirmed by the appellate authority and the Tribunal cannot be sustained and is fit to be set aside. Learned counsel for the petitioner submits that it is in these circumstances that the petitioner had sought a reference from the Tribunal which was refused, giving rise to the present case. 10 Mr. Piyush Lal, learned A.C. to A.A.G.-1 appearing on behalf of the State and its authorities supports the impugned action and the order passed thereunder. Learned counsel submits that wrong filing of the monthly abstract statement of sales would not facilitate the petitioner to escape the liability of penalty as enshrined under Section 16(9) of the Act. 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 11 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 records of the proceedings. It is an admitted fact that the returns as well as tax in terms of the said returns were filed by the petitioner within the prescribed period. It is also an admitted position that additional tax was found to be outstanding on the basis of the internal audit of the petitioner. It is also admitted that the said tax was deposited by the petitioner subsequently but much prior to the assessment proceedings. The entire issue raised in the present proceedings is whether the deposit of the outstanding tax by the petitioner beyond the prescribed period but prior to the assessment proceedings would entail imposition of penalty in terms of the provisions set out under Section 16(9) of the Act of 1981 which runs as follows: “16(9) If any registered dealer fails to make payment of the tax under sub- section (5) within the due date mentioned in the said sub-section or within the extended date under the proviso to clause (iii) of the said sub-section or of any extra 12 amount of tax due from him according to return or revised return as mentioned in sub-sections (6) and (7) or if a dealer to whom permission to file an annual return has been given under the third proviso to sub-section (1) of this Section, fails to make payment of the tax in the manner prescribed, the prescribed authority shall after allowing such a dealer an opportunity of being heard in the manner prescribed, impose a penalty which may extend to five percentum [but not less than two and half percentum] of the amount of tax for each of the first three months [or part thereof] following the due date or the extended date and to ten percentum [but not less than five percentum] for each subsequent month or part thereof.” The imposition of penalty under a penal provision of any statute is not automatic and cannot be made in a mechanical manner. Though the power is discretionary but is to be exercised diligently and with utmost caution, in an appropriate proceeding initiated in this regard. The onus discharged by the statutory authority in such proceedings, is quasi judicial in nature and not as one espousing the cause of revenue. Neither the existence of a penal provision nor the power vested in the statutory authority to impose the same in any manner mandates that it is necessary to do so. These principles oft repeated in judicial decisions, yet continue to evade the minds of the statutory authorities 13 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. Versus 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(1)(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 quashi-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 refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. ………………………….…………………….” The scope, intent and the applicability of Section 16(9) of the Act of 1981 came up for consideration before this Court in a case of another Public sector Corporation namely, the M/s Indian Oil Corporation Ltd. reported in 14 2003(3) PLJR 561, 2007(4) PLJR 175 and 2007(4)PLJR 328. In each of the situations the said Corporation had deposited the tax belatedly as in the case of the present petitioner and thus subjected to proceedings under Section 16(9) of the Act of 1981. This Court in the judgment reported in 2003(3) PLJR 561 considering the circumstances in the backdrop of the statutory provisions of Section 16(9) held as follows: “21. The facts have already been stated above. Whether it can be said that the petitioner has acted dishonestly, deliberately and in conscious disregard to the statutory requirement. The glaring facts clearly show that there was a prolonged litigation. The petitioner bona fide believed that it was liable to pay tax from the date of the judgment of the Apex Court when the Act was held to be valid piece of legislation. It made a request to that effect. It also immediately applied for registration and the authorities having considered the matter granted registration and, thereafter, it filed the returns and deposited the admitted tax for three assessment years. Even when there was a controversy about the applicability of the Act, the petitioner had deposited the ad hoc amount of admitted tax before the judgment of the Apex Court and also paid the admitted tax for subsequent period. In such a situation, I am of the considered view that the petitioner in a good faith acted bona fide. ……………………………………………………. …………………………………………………… In such a situation, it was not a case where the penalty should have been imposed upon the petitioner. ……………………………………… …………………………………………………..” 15 We are, further, tempted to refer to the following paragraphs of the judgment of this Court reported in 2007(4) PLJR 175 :- “6 Dr. Debi Pal appearing on behalf of the petitioner laid great stress on the point that the delay in payment of the small fraction of the tax amount was wholly unintentional. Learned counsel submitted that having regard to the complexity of the accounts, it might not have been even possible 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. Versus the State of Orissa, (1970)25 STC 211 & (ii) The Cement Marketing Co. of India Ltd. Vs. 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 16 of the Act was leviable on non- payment of tax or any extra amount of tax according to return or revised return submitted by the dealer. He further submitted that whatever taxes were payable according to the return or the revised return(s) submitted by the petitioner were actually paid on the same day the return(s) were 16 filed and hence, there was nothing to attract the provisions of Section 16(9) of the Act. In support of the submission, he relied upon a decision of the Supreme Court in J.K. Synthetics Ltd. Vs. Commercial Taxes Officer and Birla Cement Works and Another vs. State of Rajasthan and Another (1994) 94 STC 422(SC). 15. On hearing Dr. Pal for the petitioner and the learned Advocate General on behalf of the State and on a careful consideration of the materials on record, I find substance in both the submissions made on behalf of the petitioner and I am of the considered view that in the facts and circumstances of the case, the impugned order of penalty is unsustainable. The imposition of penalty against the petitioner by the Revenue Authorities for the assessment period 1998-99 is accordingly set aside.” It is an admitted position that even before the Assessing Officer could do the assessment proceeding for the period in question, the petitioner had deposited the entire admitted amount of tax. There is no finding in the order of the Assessing Authority that the delay in deposit of the tax by the petitioner could be attributable to any deliberate, wilful or contumacious conduct of the petitioner. A mere delay in deposit of tax in given circumstances cannot be an item of suspicion that it was backed by a deliberate intention of the assessee to avoid tax. The accompanying circumstances governing the present case does not in the least comes within such category of cases. The reasons 17 attributed by the Assessing Authority for imposition of penalty as also noted in this judgment, do not satisfy the pre- requisites to the imposition of penalty as envisaged under the provisions of Section 16(9) of the Act of 1981 and/or in the judgment of this Court and the Supreme Court on the issue. Regard being had to the circumstances and the judgments of the Supreme Court as well as of this Court on the issue, as taken note of, lead us to an irresistible conclusion that the proceeding for imposition of penalty and the order passed thereunder, was wholly unwarranted and unsustainable. For the reasons and observations aforesaid, the judgment and the order passed by the Commercial Taxes Tribunal, Bihar, Patna in Revision Case No.REF-PT-1/2005 dated 29.9.2008 together with the judgment and order dated 6.10.2004 passed in Revision Case No. PT 22 of 2004, the order of the Joint Commissioner, Commercial Taxes Appeal dated 20.12.2003 passed in Appeal Case No. ST-SL-104/02- 03 and the order of the Assistant Commissioner, Commercial Taxes, Special Circle, Patna dated 28.10.2002 in so far as it relates to the imposition of penalty under Section 16(9) of the Bihar Finance Act 1981 is quashed and 18 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. The Tax case and the Miscellaneous Appeal stands disposed of accordingly but in the circumstances, without any order as to costs. Patna High Court/ Dated the 1st February, 2011 Bibhash / A.F.R. ( R.M. Doshit, CJ.) ( Jyoti Saran, J.)