The revisional authority has no jurisdiction to levy penalty under section 36(2) of the Bombay Sales Tax Act, 1959, except while passing an order in revision.

The judgment of the Court was delivered by

DR. B. P. SARAF, J. - By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, made at the instance of the assessee, the Maharashtra Sales Tax Tribunal has referred the following question to this Court for opinion :

"Whether, on the facts and in the circumstances of the case, the Assistant Commissioner had jurisdiction to take any action under section 57 of the Act and thereby levying penalty for the first time under section 36(2)(c) of the Act and consequently the Tribunal confirming orders of the lower authorities ?"

Obviously the above question is a pure question of law and the answer thereto would depend on a proper construction of section 57 and section 36(2) of the Bombay Sales Tax Act, 1959 ("the Act").

2. The assessee, who is a dealer under the Bombay Sales Tax Act, 1959, was assessed by the Sales Tax Officer by his order of assessment dated June 30. 1975, under section 33(3) of the Act for the period April 1, 1972 to March 31, 1973. No appeal or revision was filed by the assessee against the above order of assessment.

3. After more than one and half years of the completion of the assessment, the Assistant Commissioner of Sales Tax (Administration) issued a notice dated January 24, 1977 to the assessee purporting to be a notice under section 55 or 57 of the Act. By the said notice, the assessee was informed that it was proposed to impose a penalty of Rs. 7,500 under section 36(2)(c) of the Act for knowingly furnishing inaccurate particulars of transactions liable to general sales tax ("the GST") by revising assessment order under section 57 of the Act. On the very same day, another notice was also issued by him to the assessee-company asking it to show cause why penalty should not be levied on him under section 36(2)(c) of the Act for the period April 1, 1972 to March 31, 1973, for knowingly furnishing inaccurate particulars of transactions specified therein liable to the GST.

4. In pursuance of the above notices, the assessee appeared before the Assistant Commissioner of Sales Tax (Administration) and objected to the issue of both the notices on the ground, inter alia, that no penalty having been levied by the assessing authority under section 36(2)(c) of the Act, there was no order which could be revised in exercise of revisional jurisdiction. It was also pointed out that the revisional authority had no jurisdiction to initiate proceedings for levy of penalty and to levy penalty under section 36(2)(c) of the Act except while passing an order in revision proceedings. The revisional authority did not find any error in the order of assessment made by the Sales Tax Officer under section 33 of the Act. He, however, acted on the notice issued by it asking the assessee to show cause against levy of penalty under section 36(2)(c) of the Act and imposed penalty of Rs. 7,500 under the said section in the purported exercise of the power of suo motu revision under section 57 of the Act. The assessee appealed against the above order of the revisional authority, the Assistant Commissioner, to the Deputy Commissioner of Sales Tax, who rejected the appeal and confirmed the order of the revisional authority. Against the order of the Deputy Commissioner, the assessee went in revision to the Maharashtra Sales Tax Tribunal ("the Tribunal") challenging the levy of penalty for the first time under section 36(2)(c) of the Act in the purported exercise of the powers under section 36(2) of the Act. The Tribunal did not accept the challenge of the assessee to the revisional order on the ground of lack of jurisdiction of the revisional authority. It however reduced the quantum of penalty from Rs. 7,500 to Rs. 1,000. Hence this reference at the instance of the assessee.

5. The learned counsel for the assessee submits that the revisional authority, the Commissioner, has no power to levy penalty under section 36(2) of the Act except while passing an order in revision. His power u