Penalty is outside "tax" for reference jurisdiction where the statute defines tax separately from penalty.

An order dealing solely with penalty under section 16(4) of the Bombay Sales Tax Act, 1953 did not fall within the expression "tax" in section 34(1) because section 2(18) defined tax exclusively and separately from penalty. The scheme of the Act treated liability to tax and penalty as distinct, and the context of section 34(1) did not justify expanding "tax" to include delayed-payment penalty. The reference was therefore not maintainable under section 34(1), and the question referred was declined to be answered.

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Issues: Whether a reference under section 34(1) of the Bombay Sales Tax Act, 1953 was maintainable where the impugned order concerned only penalty under section 16(4), and whether such penalty fell within the expression "tax" in section 34(1).

Analysis: The definition of "tax" in section 2(18) of the Bombay Sales Tax Act, 1953 was exclusive and did not include penalty. Section 16(4) itself used the expressions "tax" and "penalty" separately, and the scheme of the Act treated incidence and levy of tax and the provision for penalty as distinct matters. The Court held that the context of section 34(1) did not justify enlarging "tax" to include a penalty levied for delayed payment, notwithstanding the consequence-based connection between default in tax payment and the imposition of penalty. The cited authorities did not alter this conclusion, because the present Act contained an express definition excluding penalty from tax and the order under challenge related only to penalty.

Conclusion: The reference was not maintainable under section 34(1) insofar as it related only to penalty under section 16(4), and the question referred was declined to be answered.

Final Conclusion: Penalty under section 16(4) was held to be outside the scope of "tax" for the purpose of reference jurisdiction under section 34(1), with the result that the Tribunal's reference was returned unanswered.

Ratio Decidendi: Where the statute defines "tax" in a manner that excludes penalty, an order dealing solely with penalty does not fall within a provision conferring reference jurisdiction over orders affecting liability to pay tax.

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