1964 (12) TMI 31

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....titioner on 8th June, 1961, and the tax was paid on 24th August, 1962. On 4th September, 1962, the Additional Commercial Tax Officer issued a notice purporting to be under section 24(3) of the Act demanding a penalty of Rs. 6,368-89. The reason was that the payment of the tax as assessed was delayed by the assessee and the period for which the penalty was levied was from the date of passing of Act I of 1959. The legality of this levy is questioned in this writ petition and certiorari has been prayed for to quash the demand. It is claimed by the petitioner that the provision in the new Act, enabling penalty to be levied for delay in the payment of the assessed tax, is a new one, and it does not in terms apply to tax which was assessed under ....

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....n will have no application whatsoever. It is urged that the contention of the department that section 61 confers power to levy a penalty is not correct. Section 61 of the Act, as it was originally passed by Act I of 1959, was amended by Act X of 1963 and was made retrospective in its operation. After providing by sub-section (1)(i) for the repeal of the Madras General Sales Tax Act, 1939, sub-section (1)(ii) reads thus: "The repeal of the said Act by clause (i) shall not affect- (a) anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of this Act; or   (b) the previous operation of the said Act or anything duly done or suffered thereunder; or (c) any right,....

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....es an order of assessment under Act IX of 1939, an order of assessment deemed to be one under the new Act, it does not proceed any further. Under the old Act, there was no provision for imposing a penalty for delay in payment of the assessed tax. Section 24(3) is a new provision and a penalty which the law, that is, Act IX of 1939, did not provide for, cannot be held to have any application to proceedings under that Act. The penalty in terms of section 24(3) is incurred when the amount of tax is not paid within 21 days from the date of service of the notice. On the date of the assessment, which was in 1956, no penalty was incurred, whatever the extent of the delay in making the payment thereof. What section 61(1)(ii) saves is only a fine, p....