Pre-assessment tax payments must count toward the "sum already paid" threshold under sales tax penalty provisions.

For applying section 36(3A) of the Bombay Sales Tax Act, the expression "sum already paid" includes all tax paid before assessment, not only amounts paid with the return. The assessment date is the relevant cut-off, so payments made after filing the return but before assessment must be counted in determining whether the assessed tax exceeds the threshold by more than 20 per cent. A narrower reading would add words to the statute and was rejected. On that basis, the pre-assessment payments were to be included, and the penalty provision was not attracted.

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Issues: Whether, for applying section 36(3A) of the Bombay Sales Tax Act, 1959, the amount of tax paid by the assessee after filing the return but before assessment had to be included in the sum already paid prior to assessment for deciding whether the assessed tax exceeded that sum by more than 20 per cent.

Analysis: Section 36(3A) uses the expression "sum already paid" and does not confine the computation to amounts paid along with the return. The provision makes the relevant point of time the date of assessment, and therefore all tax payments made before the actual assessment, whether at the time of return or afterwards, form part of the sum already paid. The attempted restriction urged on behalf of the revenue would require reading words into the statute that are not there. The court also noticed that the structure of section 38 and the analogous income-tax provision reinforced that, where the legislature intended a narrower basis, it said so expressly.

Conclusion: The tax paid by the assessee before assessment had to be taken into account. The penalty under section 36(3A) was not attracted on the basis adopted by the taxing authority, and the reference was answered in favour of the assessee.

Final Conclusion: The computation for the 20 per cent threshold under section 36(3A) had to include all pre-assessment payments, not merely payments made with the returns, so the penalty order could not stand.

Ratio Decidendi: Where a taxing statute refers to the "sum already paid" prior to assessment, the computation must include every payment actually made before assessment unless the statute expressly limits the basis to payments made with the return.

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