Case: State Of Rajasthan And Others Vs. Ghasilal

for the prescribed periods in the prescribed form, in the prescribed manner and within the prescribed time to the assessing authority.Provided that the assessing authority may extend the date for the submission of such returns by any dealer or class of dealers by a period not exceeding fifteen days in the aggregate.(2) Every such return shall be accompanied by a Treasury receipt or receipt of any bank authorised to receive money on behalf of the State Government showing the deposit of the full amount of tax due on the basis of return in the Government Treasury or bank concerned.(3) If any dealer discovers any omission, error or wrong statement in any returns furnished by him under sub-s. (1), he may furnish a revised return in the prescribed manner before the time prescribed for the submission of the next return but not later.(4) Every deposit of tax made under sub-s. (2) shall be deemed to be provisional subject to necessary adjustments in pursuance of the final assessment of tax made for any year under S. 10.Section 16(1)-- If any person-----(a) has without reasonable cause failed to get himself registered as required by sub-s. (1) of S. 6 within the time prescribed; or(b) has without reasonable cause failed to pay the tax due within the time allowed; or(c) has without reasonable cause failed to furnish the return of the turnover, or failed to furnish it within the time allowed; or............................................................................................................................the assessing authority may direct that such person shall pay by way of penalty, in the case referred to in clause (a) in addition to the fee payable by him, a sum not exceeding Rs. 50 and in case referred to in clause (b), in addition to the amount payable by him, a sum not exceeding half of that amount, and that in cases referred to in clauses (c) and (d), in addition to the tax payable by him, sum not exceeding half the amount of tax determined; in the case referred to in clause (e), in addition to the tax payable by him a sum not exceeding double the amount of tax, if any which would have been avoided if taxable turnover as returned by such person had been accepted as correct turnover, and in the cases referred to in clauses (f), (ff) and (g), a sum not exceeding Rs. 100."8. Mr. Garg contends that there was no breach of S. 16(1)(b) of the Act. No tax was due till the respondent filed return under Section 7(1) of the Act. Section 7(2), which requires a deposit of full amount due on the basis of the return was complied with when the respondent filed the returns on December 18, 1959, and in January to March, 1960. There cannot be noncompliance of S. 7(2) unless a return is filed without depositing the tax due on the basis of the return, and as no return was filed earlier than December 18, 1959, there had been no violation of the requirements of S.7(2). He further contends that no tax is due till assessment is made under S. 10 of the Act.9. The learned Advocate-General, on the other hand, urges that tax becomes due because of the charging sections of the Act, i.e., S. 3 read with S. 5. He further contends that a show cause notice had been given on December 4, 1959, and as there was delay in complying with the notice, there was breach of S. 16(1)(b) of the Act.10. In our opinion, there has been no breach of S. 16(1)(b) of the Act, and consequently, the orders imposing the penalties cannot be sustained. According to the terms of Section 16(1)(b), there must be a tax due and there must be a failure to pay the tax due within the time allowed. There was some discussion before us as to the meaning of the words time allowed, but we need not decide in this case whether the words time allowed connote time allowed by an assessing authority or time allowed by a provision in the Rules or the Act, or all these things, as we are of the view that no tax was due within the terms of S. 16(1)(b) of the Act. Section 3, the charging section, read with S. 5, makes tax payable, i.e., creates a liability to pay the tax. That is the normal function of a charging section in a taxing statute. But till the tax payable is ascertained by the assessing authority under S. 10, or by the assessee under Section 7 (2), no tax can be said to be due within S. 16 (1) (b) of the Act, for till then there is only a liability to be assessed to tax.11. The contention of the learned Advocate-General that the show-cause, notice dated December 4, 1959, makes tax due is without any substance. He was not able to point to any rule or provision of the Act, under which the show cause notice was issued. It may be that the assessing authority had in mind R. 31, but that rule comes into the picture only when an assessment has been completed.12. The last contention of the learned Advocate-General is that the stay order passed by the High Court required the respondent to submit returns. This, according to him, implied that he had to submit returns in accordance with law, including S. 7 (2). As he had failed to submit returns and deposit the tax in accordance with the directions of the High Court, there was a breach of S. 16 (1) (b).We are unable to read the stay order as implying that the respondent was obliged to deposit tax for the stay order then would be of no utility to the assessee. Apart from that, the respondent did not file returns till December 1959, and January-March 1960, and S. 7 (2) could not be attracted till then.13. We may mention that we are not concerned with the question whether there has been any breach of S. 16 (1) (c).14.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]But we express no opinion one way or the other on this point as the appeals can be disposed of on a narrow, point of the contruction of theof Section 16(1)(b), there must be a tax due and there must be a failure to pay the tax due within the time allowed. There was some discussion before us as to the meaning of the words time allowed, but we need not decide in this case whether the words time allowed connote time allowed by an assessing authority or time allowed by a provision in the Rules or the Act, or all these things, as we are of the view that no tax was due within the terms of S. 16(1)(b) of the Act. Section 3, the charging section, read with S. 5, makes tax payable, i.e., creates a liability to pay the tax. That is the normal function of a charging section in a taxing statute. But till the tax payable is ascertained by the assessing authority under S. 10, or by the assessee under Section 7 (2), no tax can be said to be due within S. 16 (1) (b) of the Act, for till then there is only a liability to be assessed to tax.The contention of the learned Advocate-General that the show-cause, notice dated December 4, 1959, makes tax due is without any substance. He was not able to point to any rule or provision of the Act, under which the show cause notice was issued. It may be that the assessing authority had in mind R. 31, but that rule comes into the picture only when an assessment has beenare unable to read the stay order as implying that the respondent was obliged to deposit tax for the stay order then would be of no utility to the assessee. Apart from that, the respondent did not file returns till December 1959, and January-March 1960, and S. 7 (2) could not be attracted till then.We may mention that we are not concerned with the question whether there has been any breach of S. 16 (1) (c).