TaxTMI 
TaxTMI 
2009 (1) TMI 783
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....dealer at the relevant point of time, was engaged in the business of selling refrigerators, air-conditioners and carrying out installation thereof. The respondent/dealer was assessed to sales tax by the assessing authority for the period 1977-78 under the Act. By virtue of the assessment order dated December 23, 1981, the assessing authority raised additional demand of sum of Rs. 89,683. The said additional demand consisted of: "tax on the price of transferred goods or unutilized purchases on the basis of registration certificate, for the manufacture of goods:" amounting Rs. 58,481.90, while the balance sum amounting to Rs. 31,201.03 was imposed by way of interest, on the said tax. In so far as the interest was concerned, it was imposed by invoking the provisions of section 27 of the Act, for the reason that the tax in issue, was not deposited quarterly, along with the quarterly returns. The respondent/dealer being aggrieved by the demand, filed an appeal before the Additional Commissioner, Sales Tax (hereinafter referred to as "the Commissioner"). Before, the Commissioner, the respondent-dealer, while admitting the liability towards imposition of tax in the sum of Rs. 58,....
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....ent to note that, in the order of reference, the Tribunal has observed that in view of the fact, that the, learned member of the Tribunal has placed reliance on an earlier judgment of the Tribunal, passed by his predecessor, Shri D.C. Aggarwal in the case of Hamdard Dawakhana (Wakf) v. Sales Tax Commissioner 23 DSTC T-32 in respect of which, questions of law have already been referred to this court vide reference No. 65/STT/85-86, in the case titled, Commissioner of Sales Tax v. Hamdard Dawakhana (Wakf), Lal Kunan Delhi, a reference was made to this court in the instant case. It has been submitted before us by the learned counsel for the Department, Shri H.L. Taneja, Advocate that in view of the fact that the Tribunal had based its decision on an earlier decision of the Tribunal in Hamdard Dawakhana (Wakf) 23 DSTC T-32, wherein the Tribunal had observed that rule 23A of the Delhi Sales Tax Rules, 1975 (hereinafter referred to as "the Rules") had an element of repugnancy, the impugned decision was bad in law, as the settled position is, that the, authority, (i.e., the Tribunal in the instant case) being a creature of the Act could not have based its decision on such a premise. In s....
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....e from the impugned judgment. The only reason (as indicated hereinabove) the Tribunal has made a reference to us is, that, a reference was made to this court in the case of Hamdard Dawakhana (Wakf) Reference No. 65/STT/85-86. That alone, in our view, cannot be the basis of a reference to us. The reasoning given in the impugned judgment for the decision arrived at by the Tribunal is not premised on the aspect of repugnancy. Secondly, a close reading of the decision of the Tribunal in the case of Hamdard Dawakhana (Wakf) 23 DSTC T-32 would show, while there is a reference to the submissions in paragraphs 3 and 4 on the aspect of the repugnancy, the decision with respect to the liability of the dealer as regards payment of interest has been dealt with in paragraph 5 of the said judgment. The relevant observations are as follows: "Now section 27 provides that if any dealer fails to pay the tax as required by sub-section (3) of section 31, he shall, in addition to the tax due, be liable to pay simple interest on the amount so due at one percent per month from the date immediately following the last date for the submission of the return under sub-section (2) so long as he continues to ....
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....on 27 of the Act read with sub-sections (3) and (2) of section 21, as also, sections 23, 24, and 25 of the Act. The judgment of the Tribunal dated November 2, 1988 was not founded on rule 23A being repugnant to section 2(o) of the Act. The upshot of the discussion both, in the Tribunal's judgment dated November 2, 1988 and in Hamdard Dawakhana (Wakf) 23 DSTC T-32 was that if the dealer had paid tax in each quarter according to the returned turnover as defined in section 2(o), then the dealer could not be held to be a person in default within the meaning of section 27(2) of the Act. The liability to pay interest would arise under section 23 and section 24 of the Act, if the assessed tax is not deposited with the Government treasury within 30 days from the date of service of notice of demand as contemplated under section 24(1) of the Act. There is thus, according to us, nothing in the judgment of the Tribunal dated November 2, 1988 based on which it could be said that its ratio decidendi was other than what we have observed above. The passing observation that rule 23A contained an element of repugnancy vis-a-vis section 2(o) could at best be described as an obiter dicta. In view....
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....elow: (page 121 of 51 ITR) "We do not think that this clause was intended to cover a case of the present kind where a Tribunal fails to deal with a point not by mistake or inadvertence but, if we may say so, without meaning any disrespect, by design or deliberation, and yet chooses to refer such a question to the court. While discussing the true scope of the jurisdiction of the High Court under section 66, their Lordships, in the course of their judgment cited above, made the following observations which require to be carefully noted: 'If the true scope of the jurisdiction of the High Court is to give advice when it is sought by the Tribunal, it stands to reason that the Tribunal should have had an occasion to consider the question so that it may decide whether it should refer it for the decision of the court. How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought'? (The underlining Here italicised is ours). A little later in this very judgment, their Lordships proceeded to observe as under: 'The co....