Penalty for delayed tax payment not attracted when return tax was paid on time and extra liability arose later.

Section 36(3) of the Bombay Sales Tax Act, 1959 was held inapplicable where the dealer had timely paid the full tax shown as due in the return under section 38. The later payment, made after a section 52 determination that the concessional rate was unavailable, was treated as an advance against any additional liability and not as tax unpaid according to the return. The penalty provision applies only when tax is not paid within the time required by the Act, so it could not be extended to cover a subsequent higher assessment arising from the later determination. Section 36(3) was therefore not attracted.

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Issues: Whether section 36(3) of the Bombay Sales Tax Act, 1959, was attracted where the dealer had paid in full the tax shown as due in the return but later paid an additional amount after a determination under section 52.

Analysis: Section 38 requires a registered dealer to pay, along with the return, the whole amount of tax due according to that return. The dealer here had in fact paid that amount in time. The later payment was made after the Commissioner determined that the concessional rate was not available, and it was paid as an advance against the tax that might ultimately be assessed, not as an amount that was due according to the return. The penalty provision in section 36(3) applies only where tax is not paid within the time required by the Act, and it cannot be extended to a case where the return-tax was timely paid and the later additional payment arose only from the subsequent determination of liability at the higher rate.

Conclusion: Section 36(3) was not attracted. The question was answered in the negative, in favour of the assessee and against the department.

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