Penalty for late revised return payment not leviable where additional tax was paid before filing under the sales tax scheme.

Penalty under section 36(3) of the Bombay Sales Tax Act was unavailable because the statutory trigger is failure, without reasonable cause, to pay tax within the time required by the Act. For a revised return under section 32(3), section 38(3) requires the additional tax to be paid before the revised return is submitted, and the scheme treats that return separately from the original return. Since the additional tax was paid before filing the revised return, the condition for penalty was not met, and the late filing of the revised return beyond three months did not justify penalty on the facts found.

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Issues: Whether penalty under section 36(3) of the Bombay Sales Tax Act, 1959 is leviable on the additional tax paid on a revised return when the revised return itself was filed beyond the prescribed period but the tax was paid before submission of that return.

Analysis: Section 36(3) authorises penalty only where a dealer fails, without reasonable cause, to pay tax within the time required by or under the Act. In the case of a revised return under section 32(3), section 38(3) requires the additional tax to be paid before the revised return is submitted. The scheme of sections 32 and 38 treats the revised return separately from the original return and fixes the relevant date for payment with reference to the revised return itself, not the original return. Since the additional tax was admittedly paid before the revised return was filed, the statutory condition for penalty was not satisfied. The fact that the revised return was filed after the prescribed three-month period also did not create a basis for penalty on the facts found.

Conclusion: Penalty under section 36(3) was not leviable, and the answer to the reference was in favour of the assessee.

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