A penalty for delayed payment of tax can only be imposed if the dealer fails to make payment without reasonable cause.

S. J. Mukhopadhaya, J.

1. All the writ petitions filed by the common petitioner involves common point of law and in all the cases the revisional order passed by the Bihar Commercial Taxes Tribunal is common, thereby they have been heard together and disposed of by this common order.

2. The petitioner is a private Limited Company having its Registered office at Jamshedpur and Branch Offices at different places in the State of bihar. By these writ petitions, the petitioner has challenged the orders passed by the Respondents imposing penalties under Sec.25 (3) of the Bihar finance Act, 1981 (hereinafter referred to as the Act) and/or penalties imposed by the Respondent* under Sec.16 (9) of the Act, the appellate orders confirming the penalties and the order passed by the Chairman of the commercial Taxes Tribunal, Bihar, Patna in the Revision application.

3. The petitioner has not only challenged the order imposing penalties for payment of Sales tax "surcharge" in time and the revisional order confirming the same, on the basis of the merit of each case, but also has challenged the validity of Rule 33 (8) (a) of the Bihar Sales Tax Rules, 1983 (hereinafter referred to as the Rules), the proviso to which empowers the decision of the Chairman as final, in case there is a difference of opinion that of the Chairman with another member of the Tribunal and when the post of third Member is vacant.

4. The brief acts of the case lie in a narrow compass which are. as follows.

5. The Respondents State promulgated the Act and provisions of Sales tax "surcharge" was levied for first time vide Sec.5 of the Act. This section 5 levying Sales tax "surcharge" carne into force with effect from 15th january, 1981 by Notification No SO 16 of the same date. The petitioner and similarly other situated persons filed different writ petitions challenging the validity of Sec.5 of the Act levying Sales tax "surcharge". Writ petition hearing C. WJC. No.2271 of 1981 was filed by the petitioner. On 24th of August, 1981, a Bench of this Court passed stay order in favour of the petitioner in the said writ petition. Ultimately, the writ petition aforesaid was dismissed on 30th April, 1982 upholding the validity of Sec.5 of the Act imposing a levy of Sales tax "surcharge". Being aggrieved, the petitioner moved before the Supreme Court in S. L. P. (Civil) No.918 of 1982. The Supreme Court also passed stay in favour of the petitioner on 3rd September, 1982 but ultimately the said Special Leave petition was also dismissed on 6th May, 1983. It was because of such order, the petitioner did not choose to pay the sales Tax "surcharge". When the Supreme Court dismissed the Special leave Petition, there by The stay was vacated, the petitioner approached the respondents Stated for payment of Sales tax surcharge" by way of instalments. On 25th November, 1983, vide Annexure 1, the Respondents stayed immediate recovery and asked the appropriate authority to intimate as to in how many instalments the payable Sales tax "surcharge" is to be recovered. But the order finally went against the petitioner relating to instalments on 1st March, 1984 when the Respondents disagreed for instalments. The petitioner thereafter again moved this Court by filing C W J C. No.2176 of 1986 praying therein for direction to the Respondents for recovery of Sales tax "surcharge" by way of instalments. Vide other dated 14th May, 1986 (Annexure 2), a Bench of this Court disposed of the writ petition on "agreed term", laying down therein that the balance Sales tax "surcharge" is to be paid on instalments, as mentioned therein. In the meantime, different orders imposing penalty under Sections 16 (9) and 25 (3) "of the Act were issued by the different Respondents, as mentioned below. vide order dated 15th November, 1985 penalty under Sec.25 (3) of the Act has been imposed for the period 1982-83 by the assistant Commissioner, Commercial Taxes, Muzaffarpur circle, (vide Annexure-5), which is the subje