Part-payment of tax with returns falls under default in timely payment, not failure to pay the full return-based amount.

Part-payment of tax with quarterly returns under the Gujarat Sales Tax Act was treated as a default in timely payment, not as a failure to pay the whole amount required by the return-payment mechanism. Section 45(5) therefore applied to non-payment within the prescribed time, subject to reasonable cause, whereas section 45(6) was confined to cases where the full tax or extra tax required under section 47 was not paid or where reassessment created a specified excess. The Court followed the earlier pari materia construction under the Bombay Sales Tax Act and declined to reopen the coordinate Bench view on stare decisis. The penalty was accordingly referable to section 45(5), not section 45(6).

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Issues: Whether, on a dealer's failure to pay the full tax amount along with quarterly returns and only part-payment being made, the penalty was leviable under section 45(5) of the Gujarat Sales Tax Act, 1969 and not under section 45(6) of that Act.

Analysis: The statutory scheme of returns and payment under sections 40 and 47 of the Gujarat Sales Tax Act, 1969 and the corresponding rules showed a distinction between a failure to pay tax within time and a case where the dealer had not paid the whole amount required along with the return. Section 45(5) applied to default in payment of tax within the prescribed time, subject to reasonable cause, while section 45(6) applied where the whole amount of tax or extra tax required under section 47 was not paid, or where reassessment created a specified excess. The Court followed the earlier binding construction in the parallel Bombay Sales Tax Act decision, treated the provisions as pari materia, and held that part-payment with the return does not fall within section 45(6) but within section 45(5). The Court also declined to reopen the earlier coordinate Bench view on considerations of stare decisis.

Conclusion: The penalty was correctly held to be imposable under section 45(5) and not under section 45(6), and the answer to the referred question was in the affirmative, in favour of the revenue.

Final Conclusion: The reference was answered by upholding the Tribunal's view on the applicable penalty provision for part-payment of tax with returns.

Ratio Decidendi: Where a dealer pays only part of the tax due with the return, the case is governed by the provision dealing with default in payment within time and not by the provision aimed at failure to pay the whole amount required by the return-payment machinery.

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