This writ application has been filed by the writ petitioner to quash the penalty order dated 31.7.97 and 10.2.98 passed by the Inspector of Taxes, Mangaldoi for the assessment year 1997-98 imposing penalty of Rs. 3,22,200.00 (Rs. three lakhs twenty two thousand two hundred), that is, Annexure 6 and 11 to the writ application. Annexure 6, the order is dated 31.7.97 and the order is passed under the Assam General Sales Tax Act, 1993. We will come to the orders at a later point of time.

2. At the time of argument Shri Saikia also argued that he also took up the point regarding the validity of the Notification issued on 2nd July, 1993. That contention is available at paragraph 42 of the writ application and that is quoted below :

"42. That the petitioner respectfully states that the delegation of power to impose penalty under section 44 (5) (b) of the Act to the Inspector of Taxes vide Notification No. CTS 3/92/15 dated 2nd July, 1993, issued by the respondent No. 2 in exercise of powers under section 3 (3) of the Act is ultra vires the provisions of Rule 10 of the Assam General Sales Tax Rules, 1993 inasmuch as Rule 10 expressly debars such delegation to any officer below the rank of a Superintendent and as such the said notification is violative of section 3 (3) of the Act, and is liable to be quashed." Provisions of section 3 (3) of the Act are reproduced below :

"(3). Subject to such restrictions and conditions as may be prescribed, the Commissioner may by order in writing, delegate any of his powers under the Act to any person appointed to assist him under sub-section (1)."

3. Rule 10 is quoted below :

"10. The power to call for returns, to make assessment, to cancel or rectify them, to impose a penalty, to compound offences and to order maintenance of accounts shall not be delegated to any officers below the rank of a Superintendent.'.

4. It may be stated herein that during the pendency of this civil rule an amendment was introduced to the Assam General Sales Tax Rules (hereinafter called Rules) by inserting a proviso to Rule 10 and it came into force on 22nd of September, 1998. This writ application was filed on 20.5.98. That proviso is quoted below:

"Provided that the power to impose penalty under clause (b) of sub-section (5) of section 44 and under clause (c) of sub-section (2) of section 46 may be delegated to the Inspector also."

The stand of the department is that, this proviso is by way of Explanation and is only declaration in nature

5. The brief facts are as follows : The petitioner herein was a registered dealer for Supari and the Registration Certificate No. 361163 was granted by the authority. It further appears that he did business only for one year and the admitted position is that he stopped doing business from 1.4.95 and the Certificate of Registration was on his prayer returned to him as he made a declaration that he is not doing business after 1.4.95 as he has faced loss and gone out for treatment. Thereafter he filed an application in Assamese (No date is mentioned in the application). The application is Annexure XIII to the affidavit-in-reply. The photo copy given in Annexure XIII is not the correct translation and that position is also admitted by Shri Saikia. I make the translation to this application with the consent of the learned Advocate for the petitioner :

"The Superintendent of Taxes, Mangaldoi.

Ref: Registration No. MGL/GST-163.

Sir,

I have the honour to state that I had been carrying on the business of selling and purchasing goods like paddy, rice, raw jute, raw betel nut and supari from 1.4.95, I closed business as I suffered heavy loss and being ill I went outside for treatment. Now from January, 19961 am doing business in small quantity of paddy, raw betel nut along with some quantity of supari.

So it is prayed that you will be kind enough so that the certificate which has been return to your office, the date may be changed and necessary order may be passed so that I can earn my livelihood."

6. There is

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