The grant of discretion to the Commissioner to impose a penalty for failure to file tax returns is not arbitrary and unconstitutional, provided that the discretion is circumscribed by a narrow range of penalty and that the Commissioner has to give the dealer a reasonable opportunity of being heard before imposing the penalty.

S.S.Sandhawalia, J.

1. The constitutionality of Section 46 of the Haryana General Sales Tax Act, 1973, is the only question that has been agitated in this writ petition. At the very outset, however, it deserves recalling that a fragmentary challenge to the vires of Sections 25 and 47 of the Act was also sought to be raised in the writ petition itself but at the stage of the arguments Mr. R.C. Dogra frankly conceded his inability to assail these provisions at all and in terms sought to confine his arguments against the constitutionality of Section 46 only.

2. The facts, therefore, deserve recapitulation in the aforesaid context only. The petitioner-firm is admittedly a registered dealer under the Haryana General Sales Tax Act, 1973 (hereinafter called the Act), and it is not in dispute that for the material period of the quarters ending 31st December, 1973, and 31st March, 1974, respectively no returns as prescribed under the Act were filed on their behalf. Also the returns for the quarters ending 30th June, 1973, and 30th September, 1973, were filed late. Consequently, show cause notices under Section 46 of the Act were served upon the petitioner-firm. In compliance therewith the manager of the firm appeared and represented its case. However, the Assessing Authority, Sirsa, by its order dated 5th April, 1976, vide annexure P-1, imposed a penalty of Rs. 10,000 upon the petitioner-firm.

3. It is not in dispute that the aforesaid order of the Assessing Authority is appealable though the petitioner-firm did not apparently resort to that remedy. Mr. Dogra, however, frankly conceded that so far as this writ petition is concerned the matter is confined purely to the legal issue of the vires of Section 46 of the Act. For facility of reference, therefore, this has first to be set down:

Section 46. If a dealer fails, without sufficient cause, to comply with the requirements of the provisions of Sub-section (2) of Section 25, the Commissioner or any person appointed to assist him under Sub-section (1) of Section 3 may, after giving such dealer a reasonable opportunity of being heard, direct him to pay by way of penalty a sum calculated at a rate which shall not be less than five rupees or more than ten rupees for every day during which the default continues.

In view of the reference to the provisions of Section 25 herein above, it becomes equally necessary to reproduce the provisions of Section 25:

25. (1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals, as may be prescribed.

(2) Such dealer as may be required so to do by the Assessing Authority by notice served in the prescribed manner and every registered dealer shall furnish such returns by such dates and to such authority, as may be prescribed.

(3) Before any registered dealer furnishes the returns required by Sub-section (2), he shall, in the prescribed manner, pay into a Government treasury or the Reserve Bank of India or the State Bank of India the full amount of tax due from him under this Act according to such returns and shall furnish along with the returns receipt from such treasury or bank showing the payment of such amount.

(4) If any dealer discovers any omission or other error in any return furnished by him, he may at any time before the date prescribed for the furnishing of the next return by him furnish a revised return, and if the revised return shows a greater amount of tax to be due than was shown in the original return, it shall be accompanied by a receipt showing payment in the manner provided in Sub-section (3) of the extra amount.

(5) If any dealer fails to pay the tax due as required by Sub-section (3), he shall be liable to pay in addition to the tax due simple interest on the amount due at one per centum per month from the date commencing with the date following the last date for the submission of the return under Sub-section (2) for a period of one month and at one and a half per centum per month thereafter