The judgment of the Court was delivered by

S. D. SHAH, J. - This reference under section 69 of the Gujarat Sales Tax Act, 1969, is made by the Gujarat Sales Tax Tribunal at the instance of the applicant and the following questions of law are referred to us for our decision :

(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the orders of penalty were not unlawful in spite of invocation, mention and consideration of sub-section (3) instead of sub-section (3A) of section 36 of the Bombay Sales Tax Act, 1959, in the assessment proceedings before the learned Sales Tax Officer and the learned Assistant Commissioner of Sales Tax, relating to the assessment period from September 1, 1967 to May 5, 1970 ?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the orders of penalty were not unlawful in spite of invocation, mention and consideration of sub-section (5) instead of sub-section (6) of section 45 of the Gujarat Sales Tax Act, 1969, in the assessment proceedings before the learned Sales Tax Officer and the learned Assistant Commissioner of Sales Tax, relating to the assessment period from May 6, 1970 to March 31, 1971 ?

(3) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the financial stringency pleaded for getting extensions of time and/or instalments for payment of sales tax is not "reasonable cause" to claim immunity from the penalty provided by section 36(3) of the Bombay Sales Tax Act, 1959 or section 45(5) of the Gujarat Sales Tax Act, 1969 ?

The applicant is a limited company engaged in the business of manufacturing the items of glass. It was a registered dealer under the provisions of Bombay Sales Tax Act, 1959, as well as under the Gujarat Sales Tax Act, 1969. The applicant did not make the payment of dues on account of sales tax within due time for any of the periods, namely, January 1, 1967 to March 31, 1967, April 1, 1967 to March 31, 1968, April 1, 1968 to March 31, 1969, April 1, 1969 to March 31, 1970 and April 1, 1970 to May 5, 1970. There is no dispute about the fact that the applicant-company was in default of payment of full amount of tax in each of the quarters by not making any payment of tax. The Sales Tax Officer, therefore, levied penalties on amounts under section 36(3) of the Bombay Sales Tax Act, 1959, for the years when the said Act was applicable and under section 45(5) of Gujarat Sales Tax Act, 1969, for the subsequent periods.

Being aggrieved by the said order of the Sales Tax Officer the applicant carried the matter in appeal to the Assistant Commissioner of Sales Tax who rejected the said appeals and confirmed the order of the Sales Tax Officer.

Not satisfied with the judgment of the Assistant Commissioner of Sales Tax the applicant preferred six appeals to the Gujarat Sales Tax Tribunal and all such appeals were dismissed by the Tribunal by its judgment and order dated March 31, 1981. Dissatisfied with the said judgment and order of the Tribunal the applicant applied for referring the aforesaid questions of law for our decision and said application for reference being granted we are required to decide the aforesaid questions of law.

In order to answer the questions Nos. 1 and 2, it is necessary to refer to the relevant provisions of section 36 of the Bombay Sales Tax Act, 1959 and section 45 of the Gujarat Sales Tax Act, 1969. Said sections in so far as they are relevant are reproduced hereinbelow :

Section 36(3) and 36(3A) of Bombay Act of 1959 :

"36(3). If a dealer does not, without reasonable cause, pay tax within the time he is required by or under the provisions of this Act to pay it, he shall, subject to the provisions of sub-section (5) of section 55 pay by way of penalty, in addition to the amount of tax, a sum equal to -

(a) one per cent of the amount of tax for each complete month for the first three mont