The assessee cannot be held liable for the penalty under Section 16(1)(b) of the Rajasthan Sales Tax Act, 1954, for failing to deposit tax under Section 7(2A) of the Act when no return was filed under Section 7(1) of the Act.

1. - The Board of Revenue, Rajasthan ('the Board') has referred the following question of lav to this Court in pursuance of the directions given by this Court in Commercial Taxes Officer, Pali v. Sukhdeo Gulab Chand D.B. Sales Tax Reference Application No. 75/76, decided on Aug. 23, 1977 :

"Whether on the facts and in the circumstances of the case, the Board of Revenue was justified in setting aside the order of penalty imposed on the assessee under Section 16(1)(b) (as it then stood) of the Rajasthan Sales Tax Act, 1954 ?"

2. The assessee (respondent) is a partnership concern dealing in cereals, pulses, oilseeds etc. and at the relevant time, carried on its business at Jaitaran, district Pali. For the year 1965-66, the assessee filed one consolidated return on January 3, 1966, ending on October 4, 1965, for a gross turnover of Rs. 229793.03 and taxable turnover was shown nil. A revised return for the entire period was later on filed on January 25, 1967 for increased gross turnover, i.e. 2,53,077.40. In that return also, the taxable turnover was shown as nil. The assessee had deposited a sum of Rs. 430.66 as tax on March 26, 1965 and January 13, 1966. The Assessing Authority, by its order dated Feb. 10, 1967, determined the amount of tax due from the assessee at Rs. 753.59 consisting of purchase tax Rs. 632.94 plus sales-tax Rs. 120.65. It found that the balance amount of Rs. 323.99 was still due for payment. According to the Assessing Authority, the tax was to be paid monthly within 21 days of the close of each month whenever it was due. As the assessee had defaulted in this regard and did not pay full tax, a show cause notice was given to it as to why penalty be not imposed for the same. No satisfactory explanation was given by the assessee. He, therefore, imposed a penalty of Rs. 200/- under Section 16(1)(b) of the Rajasthan Sales Tax Act, 1954 (Act No. XXIX of 1954) (for short 'the Act'). An appeal was filed by the assessee. The Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, by his order dated January 14, 1970, set aside the order of penalty. The Assesssing Authority lodged revision before the Board. A single Member of the Board dismissed the revision by his order dated September 25, 1973, A special appeal was preferred and the Division Bench of the Board rejected the same by its order dated Aug. 27, 1974. An application under Section 15(1) of the Act was filed before the Board for referring the question of law arising out of the order of its Division Bench. The Division Bench declined to make reference by its order dated Aug. 11, 1975 on the ground that there is an authoritative pronouncement of the Supreme Court reported in State of Rajasthan v. Ghasilal (1965) 16 STC 318 and so there was no justification for making a reference. Thereafter an application was filed under Section 15(2)(b) of the Act before this Court. The Court directed the Board to refer the aforesaid question for its opinion.

3. In view of the provision contained in Section 13(11) of the Rajasthan Sales Tax (Amendment) Act, (No. XX of 1984) (for short 'the Amendment Act'), this reference, which was pending on May 1,1985, has been treated as a revision and we propose to dispose it of as such under Section 15 of the Act, as substituted by the Amendment Act.

4. We heard Mr. K.C. Bhandari, learned counsel for the Assessing Authority Mr. Rajesh Balia, Advocate was asked to assist us after the conclusion of the arguments of the learned counsel for the Assessing Authority and before the commencement of the dictation of the order, as nobody has appeared on behalf of the dealer-assessee. We place on record the useful assistance rendered by Mr. Rajesh Balia.

5. The Division Bench of the Board rejected the special appeal endorsing the reasons given by the single Member of the Board, when he dismissed the revision by his order dated September 25,1973. The single Member of the Board relied on State of Rajasthan's case (1965) 16 STC 318 on the ground