Full Judgment Text
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PETITIONER:
COMMISSIONER, SALES TAX, U.P. LUCKNOW
Vs.
RESPONDENT:
ANOOP WINES, KHULDABAD, ALLAHABAD
DATE OF JUDGMENT26/08/1988
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RANGNATHAN, S.
CITATION:
1988 AIR 2042 1988 SCR Supl. (2) 599
1988 SCC Supl. 731 JT 1988 (3) 631
1988 SCALE (2)550
ACT:
Uttar Pradesh Sales Tax Act, 1948/Uttar Pradesh Sales
Tax Rules 1948: Sections 8A(1)(c) and l5A (1)(g)-
Registration of dealer-Failure to register-Imposition of
penalty without notice-Whether justified.
HEADNOTE:
On the basis of a survey conducted, the respondent, a
dealer in foreign liquor was directed to get itself
registered for 1977-78 as a dealer. But this direction was
not complied with. Such a direction in respect of l976-77
was also not complied with. The Sales Tax Officer imposed a
0penalty of Rs.4,500 for non-registration under Section
15A(1)(g) of the Act. The respondent went on appeal before
the Assistant Commissioner (Judicial) who dismissed the
appeal. Thereafter it preferred a revision before the
Additional Judge (Revision) which was subsequently
transferred to the Sales Tax Tribunal. The Tribunal
dismissed the appeal. The respondent challenged the
Tribunal’s order, before the High Court by way of revision.
Allowing the revision, the High Court held that the
respondent was not under the legal obligation to seek
registration and so the question of penalty under Section
l5A(1)(g) of the Act did not arise.
This appeal, by special leave is against the aforesaid
decision of the High Court.
Dismissing the appeal,
HELD: 1.1 Without calling upon the assessee or the
dealer to explain its claim on Section 8-A(1)(c) the
imposition of the penalty which was sought to be sustained
and maintained under clause (d) of Section 8-A(1) of the Act
cannot be sustained by reference to clause (c). [603A-B]
1.2 Clause (d) of Section 8-A(1) has no application to
the facts of the present case. The dealer did not commence
business during the course of the assessment year and as
such he was not registrable in terms of that section. Clause
(d) of the said section refers to a dealer who has commenced
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business during the course of an assessment year. It is
abundantly clear that the assessee had started the business
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in the preceding year and is not the one who commenced his
business during the course of the assessment year 1977-78.
Therefore, clause (d) is inapplicable to the assessee. The
contention that the order for the imposition of penalty
could and should have been justified on clause (c) of
Section 8-A(1) being a dealer who would, but for any
exemption made or granted under the Act, be liable to pay
tax thereunder provided his actual or estimated turnover for
the assessment year is not less than fifty thousand rupees,
was never agitated before the authorities below. The
assessee or the dealer never had any occasion to meet this
case. It is not a question of sustaining jurisdiction by
reference to a wrong section, but imposition of penalty
without notice. [602d-H; 6O3A]
L. Hazari Mal Kuthiala v. Income-tax Officer, Special
Circul, Ambala Cantt. and Anr., [1961] 41 I.T.R. 12p. 20,
distinquished.
JUDGMENT:
CIVlL APPELLATE JURISDlCTlON: Special Leave Petition
(Civil) No. 14274 of 1985.
From the Judgment and Order dated 7.2.85 of the
Allahabad High Court in sales Tax Revision No. 206/1984.
A. K. Srivastava for the petitioner.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This is a petition for leave to
appeal against the decision of the High Court of Allahabad,
dated 7th February, 1985.
It is a matter dealing with sales-tax. The dealer
commenced business of foreign liquor from 1st May, 1976.
From the record, it appears that a survey was made on 7th
August, 1976 and the respondent was directed to get itself
registered for 1977-78 as a dealer. It did not. This was so
inspite of having been directed to do so in respect of 1976-
77 and, as such, penalty was imposed. The Sales Tax Officer
by his order dated 16th December, 1977 imposed penalty of
Rs. 4,500 for non-registration under section 15A(i)(g) of
the Uttar Pradesh Sales Tax Act, 1948 (hereinafter called
’the Act’). Section 15A empowers the assessing authority, if
satisfied, that any dealer had not done certain things as
contained in the various sub-clauses of sub-section (1)
therein stated it would be liable to penalty. The dealer is
liable if he fails to obtain transit pass or to deliver the
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same as provided in section 28-B of the Act. It is on this
score, that is to say, failure to obtain or deliver transit
pass that the dealer was found guilty and was penalised.
Against the aforesaid order, the respondent-dealer filed an
appeal before the Assistant Commissioner (Judicial) Sates
Tax, Allahabad Range, Allahabad. The said Assistant
Commissioner by his order dated 31st March, 1980 dismissed
the appeal and confirmed the order of the Sales Tax Officer.
Aggrieved thereby the dealer preferred a revision before the
Additional Judge (Revisions) Sales Tax, which was
subsequently transferred to the Sales Tax Tribunal.
Allahabad Bench. Allahabad. The Sales Tax Tribunal by its
order dated 27th February. 1984 dismissed the appeal of the
dealer and confirmed the order of the Assistant Commissioner
(Judicial), Sales Tax. Aggrieved thereby the assessee
challenged the same in the High Court by way of revision.
The High Court in the impugned judgment allowed the
revision. The High Court noted the contention of the
assessee that it was not under the legal obligation to seek
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registration and therefore, the question of any penalty
under section 15A(1)(g) of the Act did not arise.
In this connection it is relevant to refer to Section 8A
of the Act. Section 8A so far as material for our present
purpose provides as follow:
"8A. Registration of dealers and realization of tax by
dealers. (1)(a) Every dealer who sells any goods imported by
him from outside Uttar Pradesh the turnover whereof is
liable to tax under sub-section (1) of section 3-A; and
(b)every dealer who is liable to pay tax under any
other provision of this Act; and
(
c)
every dealer who would, but for any exemption made or
granted under this Act, be liable to pay tax thereunder,
provided his actual or estimated turnover for the assessment
year is not less than fifty thousand rupees in the case of
manufacturers and one lakh rupees in the case of other
dealers or such large amount as may be notified under sub-
section (2) of section 3; and
(d) every dealer commencing business during the course
of an assessment year whose average monthly estimated
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turnover for the remainder of the year, or whose actual
turnover in any month during the aforesaid period, is not
less than one-twelfth of fifty thousand rupees in the case
of manufacturers and one lakh rupees in the case of other
dealers or of such larger amount as may be notified under
sub-section (2) of section 3; shall apply for registration
or renewal as the case may be to the assessing authority in
such form, in such manner and within such period as may be
prescribed. The application for registration or renewal
shall, as from the assessment year l978-79, be made for a
period of three assessment years and the applications for
subsequent renewals shall be made for every three years
hereinafter referred to as the triennial renewal:"
We are not, in the instant case, concerned with the
different provisos and the subsequent clauses. It appears
that clause (d) has no application to the facts of this
case. The dealer indeed in this case did not commence
business during the course of the assessment year and as
such he was not registrable in terms of that section. Clause
(d) of the said section refers to a dealer who has commenced
business during the course of an assessment year. It is
abundantly clear in this case that the assessee had started
his business in the preceding year and is not the one who
commenced his business during the course of the assessment
year 1977-78, therefore, clause (d) is inapplicable to the
assessee. The High Court noted that he is not said to have
been covered by any other clause of sub-section (1) of
section 8A. That is the parameter within which the matter
was canvassed before the authorities below. Counsel for the
revenue, however, sought to urge before us that the order
for the imposition of penalty could have been and should
have been justified on clause (c) of section 8-A(1) being a
dealer who would, but for any exemption made or granted
under the Act, be liable to pay tax thereunder, provided
his actual or estimated turnover for the assessment year is
not less than fifty thousand rupees. This point was never
agitated before the authorities below. The assessee or the
dealer had never any occasion to meet this case. It is not a
question of sustaining jurisdiction by reference to a wrong
section as was done in the case of L. Hazari Mal Kuthiala v.
Income tax Officer,Special Circle, Ambala Cantt. and Anr.,
[1961] 41 I.T.R. 12 at page 20 where this Court held that if
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a particular action is valid under one section. it cannot be
rendered invalid because reference was made to another
section, and it makes no difference if the two empowering
provisions are in the same statute. But this principle will
have no application where in a penal action no notice was
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given or resort to such a provision was made to the
delinquent or the offending party.
In that view of the matter, we are of the opinion that
without calling upon the assessee or the dealer to explain
its claim on section 8-A(1)(c) the imposition of the penalty
which was sought to be sustained and maintained under
clause (d) of section 8-A(1) of the Act cannot be sustained
in this case by reference to Clause (c).
In the premises, the High Court was right in the view it
took. The petition raises no substantial question of law
which requires looking into or interference by this Court.
The petition, therefore, fails and is dismissed accordingly.
G.N. Petition dismissed.