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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                                                   PG NO 599                                                   PG NO 600 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                                                   PG NO 601 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                                                   PG NO 602 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                                                   PG NO 603 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.