2006 (1) TMI 642

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.... assessee filed returns late and monthly tax was also found not to have been paid according to provisions of section 27(2) of the M.P. General Sales Tax Act, 1959 (hereinafter referred to as 'the Act'). Accordingly, a penalty of ₹ 19,191/ - was imposed under section 17(3) of the Act. The assessee filed a first appeal against the levy of penalty under section 17 of the Act, but the Deputy Commissioner rejected the appeal. Thereafter, the assessee filed second appeal before the Board of Revenue, Madhya Pradesh and the Board of Revenue held that in order to attract penalty under section 17(3) of the Act, there must be positive finding that the failure or the default to file the return within time and to pay the tax within time w....

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....ortunity to establish before the Assessing Officer that he had sufficient cause for not filing the return within time or to pay the tax within time. The provision for imposition of penalty on a registered dealer for not furnishing return in time or for failing to furnish along with the return proof of payment is made in Clause (b) of section 17(3) of the Act. The provisions which relate to imposition of penalty under sub -clause (b) of section 17(3) are quoted herein below : 17(3) If - (b) a registered dealer fails without sufficient cause to pay the amount of tax in the manner prescribed under sub -section (2) of section 22 or to furnish his return under sub -section (1) or revised return under subsection (2) for any period in the manner....

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....ing along with the return proof of payment of tax due, such penalty cannot be imposed. Infact, he requirement in the provision for giving a reasonable opportunity of being heard is for the purposes of enabling the dealer to establish before the Commissioner that he had sufficient cause for not filing return by the date prescribed or for not furnishing along with the return proof of payment as required by sub -section (1 -A) of section 17 of the Act. The word "may" in the provision further makes it clear that the Commissioner may or may not impose penalty under section 17(3) of the Act in any particular case. In other words, where sufficient cause is shown by the registered dealer by the date prescribed for not furnishing the Retur....