Case: Narain Das Suraj Bhan Vs. Commissioner, Sales Tax, U.P., Lucknow

2. The appellant, hereinafter called the "assessee", was a dealer in sugar at Agra. It was assessed to sales tax for the assessment year. The assessee furnished a return disclosing its gross and net turnover at Rs. 94, 29,0 and Rs.3 respectively. The return was filed under section 7 of the U.P. Sales Tax Act, 1948, hereinafter called the "Act", which was to the following effect :"7. Determination of turnover and assessment of tax.(1) Every dealer who is liable to pay tax under this Act shall submit such return or returns of his turnover of the previous year or the assessment year as may be applicable within such period, in such form and verified in such manner, as may be prescribed :Provided that a dealer who deals exclusively in goods in respect of whose turnover he is not liable to pay tax need not submit any return :Provided further that the assessing authority may in his discretion extend the date of the submission of the return by any person or class of personsThe figures given in the return were accepted by the Sales Tax Officer and the assessment was made according to the net turnover of Rs.. Subsequently, the Sales Tax Officer received information that the assessee had imported sugar from outside U.P. and sold it and had not disclosed the same in its return. The Sales Tax Officer accordingly issued a notice under section 21(1) of the Act. The section, as it stood at the material time, read as follows:"Where any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year, the assessing authority may, at any time within three years from the expiry of such year, and after issuing notice to the dealer and making such enquiry as may be necessary, assess the tax payable on such turnover."The notice actually issued to the assessee simply required it to file a statement in a form accompanying it and from the order passed under section15Ait appears that the form sent to it was Form No. III which was a form not of a return of turnover but of a statement of imports during any particular period. The assessee did not furnish any information nor did it furnish a return of its turnover. Instead the assessee furnished a typed statement showing import of sugar valued at Rs. 3, 29, 020. After making an enquiry the Sales Tax Officer found that the statement furnished by the assessee was again incorrect and he assessed the amount of the imported sugar at Rs. 7, 12,6 and made an assessment of an additional tax of Rs. 22,. A notice of his demand was issued to the assessee requiring it to pay the amount within a certain time, but the assessee failed to comply with the notice. Accordingly on April 25, 1956, the Sales Tax Officer issued a notice under section15Aof the Act calling upon the assessee to show cause why penalties should not be imposed upon it for default under section) and (c). Section) of the Act, as it stood at the material time, was to the following effect :Penalty for failure to file returns.(1) If the assessing authority in the course of any proceedings under this Act is satisfied that any dealer(a) has, without reasonable cause, failed to furnish the return of his turnover which he was required to furnish under section 7, or has, without reasonable cause, failed to furnish it within the time allowed and in the manner prescribed; or(b) has concealed the particulars of his turnover or deliberately furnished inaccurate particulars of such turnover; or(c) has without reasonable cause, failed to pay, within the time allowed the tax assessed on him, he may direct that such dealer shall pay, by way of penalty, in the cases referred to in clauses (a) and (c), in addition to the amount of tax payable by him, a sum not exceeding 25 per cent. of the tax due if the tax is up to rupees 10, 000 and not exceeding 50 per cent. of the tax due if the tax is abouve rupees 10, 000 and in the cases referred to in clause (b), in addition to any tax payable by him, a sum not exceeding one andf times the amount of tax, which would have been avoided if the turnover as returned by such dealer, had been accepted as the correct turnover."3. In the meantime the amount of the tax imposed under section 21 was reduced on revision to Rs. 11,6 and therefore another notice under section15Awas issued on August 8, 1956. The Sales Tax Officer then obtained approval of the Commissioner, Sales Tax, for imposition of a penalty of Rs. 17, 000. After hearing the assessee the Sales Tax Officer held that a penalty of Rs. 17, 000 should be imposed. According to the Sales Tax Officer the amount of tax avoided was Rs. 11,6 and the penalty should be fixed at one andf times the tax avoided. This order of penalty was upheld by the Judge (Appeals) but on revision the Judge (Revisions) held that the assessee was liable to pay a penalty of only Rs. 1,0 and ordered that the balance of the penalty should be refunded. The order was based on the view that there was concealment on only Rs. 1,6 which was the difference between Rs. 11,6 the amount of the tax found due and Rs. 10,0 the amount of the tax due according to the statement filed in the proceedings under section 21. He imposed the penalty only under clause (b) at one andf times the amount of the tax which would have been avoided if the statement filed by the assessee had been accepted as correct. At the instance of the Commissioner, Sales Tax, the Judge (Revisions) referred the following questions of law for the determination of the High Court :"(1) Whether the penalty should have been imposed on the entire turnover assessed to tax under section 21 or should have been imposed only on the basis of the turnover which had been concealed or incorrectly disclosed during the proceedings under section 21 of the U.P. Sales Tax Act ?(2) Whether the order passed by the Sales Tax Officer on 31st March, 1957, was one imposing a penalty both under clauses (b) and (c) of section15Aor only under section4. By its judgment dated March 19, 1963, the High Court answered both the questions against the assessee.

Reasoning: In our opinion, there is no substance in the contention put forward on behalf of the appellant. It is important to notice that section 21 of the Act does not require the assessee to furnish a return or particulars of its turnover. The notice to the assessee was issued in the present case under section 21 simply requiring it to file a statement in the form accompanying it, namely, Form No. III which is a form not of a return of turnover but of a statement of imports during a particular period. In rely to the notice the assessee furnished a typed statement showing import of sugar valued at Rs. 3, 29, 020. No form of the notice to be given under section 21(1) is prescribed under the Rules and consequently there is not question of a fresh return of the turnover to be filed by the assessee after receipt of the notice. In our opinion, clause (b) of section) is attracted as soon as it is shown that the assessee has concealed the particulars of its turnover or deliberately furnished inaccurate particulars of such turnover in the return filed under section 7 of the Act. It is manifest that from the grammatical point of view the words "inaccurate particulars of such turnover" in clause (b) of section) refer back to clause (a) where the return under section 7 is specified. In other words, clause (b) refers to default in respect of the return furnished under section 7 and cannot possibly refer to any default in respect of anything done by the assessee in a proceeding under section 21In our opinion the provisions of clause (b) of section) are fully applicable to a case where in a proceeding under section 21 the assessing authority is satisfied that there was concealment or inaccurate furnishing of particulars in the return filed under section 7. The default was in the return filed under section 7 and that default continues and is not obliterated even though the assessee in a proceeding under section 21 admits the default and supplies correct particulars of its turnover. We accordingly hold that the penalty under section) of the Act should have been imposed on the entire turnover assessed to tax under section 21, that is to say, on the turnover concealed from or incorrectly disclosed in the return submitted under section 7 and not in any statement submitted by the assessee under the proceeding under section 21 of the Act. It follows therefore that the High Court has correctly answered the first question against the assesseeBut the order of the Sales Tax Officer shows that the penalty was imposed on the ground that the assessee "concealed particulars of its turnover or deliberately furnished inaccurate particulars of such turnover". The power to impose penalty is conferred upon the assessing authority, and he is not required to impose any fixed penalty. Only the maximum amount of penalty is indicated in the approximate sections. The Judge (Revisions) has pointed out that the assessing authority has not imposed any penalty under section. That order was made within his competence, and unless that order is set aside by appropriate proceedings under the Act, there can be no additional penalty imposed upon the assessee. It is also possible to take the view that the penalty imposed was a composite penalty both under clauses (b) and (c) of section. In our opinion, the second question does not require to be answered in the present reference because it has become academic.