JUDGMENT
B.N. Kirpal, J.
1. The Sales Tax Tribunal has referred the following question to this Court for our consideration :
“Whether on the facts and in the circumstances of the case a penalty under section 22A(1) of the Bengal Finance (Sales Tax) Act, 1941, is justified ?”
2. Briefly stated the facts are that the dealer was required to furnish quarterly returns of the sales made by it. In respect of the first quarter ending 30th of June, 1968 the dealer filed a return on 3oth July, 1968, giving a figure of Rs. 1,10,888. Subsequently, the dealer filed a revised return under section 10(4) of the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi. By the revised return the taxable sales were increased by Rs. 25,00,000.
3. A show cause notice was issued as to why penalty should not be levied under section 22A(1) of the Act for filing inaccurate particulars of the sale. No one appeared on behalf of the dealer and vide order dated 15th January, 1973, penalty of Rs. 25,000 was imposed.
4. Appeal was filed against the said order and the Assistant Commissioner of Sales Tax came to the conclusion that the dealer had deliberately reduced the sales and that the default was systematic and the dealer had been practicing it for the last so many years as the mistake benefited him. The Assistant Commissioner, however, reduced the penalty from Rs. 25,000 to Rs. 5,000.
5. The dealer then filed a revision petition before the Additional Commissioner, Sales Tax, but the same was dismissed on 30th September, 1974. In coming to this conclusion the Additional Commissioner also found that the dealer has a history of holding back tax for his own benefit and under the circumstances the levying of penalty was fully justified.
6. A further revision was filed to the Additional District Judge. The Additional District Judge also came to the same conclusion, namely, that there was no clerical or arithmetical error and the intention of the dealer was to deposit less tax by filing inaccurate returns and to conceal the correct sales to the registered dealers thereby reducing the liability of sales tax payable. The levy of penalty was upheld.
7. It is thereafter that the aforesaid reference has been made to this Court.
8. It is contended by the learned counsel for the dealer that under section 10(4) of the said Act a revised return can be filed. In the revised return correct figures had been given which have been accepted and the provisions of section 22A applies only if false or inaccurate particulars are given in the return which is a subject-matter of assessment.
9. In order to examine the aforesaid contention it is necessary to refer to two provisions of the said Act, namely, section 10(4) and section 22A. The said provisions read as under :
“10(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.”
“22A. Penalty for concealment of sales or furnishing inaccurate particulars or making false representations. – (1) If the Commissioner or any person appointed under sub-section (1) of section 3 to assist him, in the course of any proceedings under this Act is satisfied that a dealer has concealed the particulars of his sales or has furnished inaccurate particulars of his sales and has thereby returned figures below the real amount, he may, after giving the dealer a reasonable opportunity of being heard, direct that the dealer shall, in addition to the tax payable by him under this Act, pay, by way of penalty, a sum not exceeding one and a half times the amount of tax which would have been avoided if the figures returned by the dealer were accepted as correct.
(2) If any person purchasing goods is guilty of an offence under clause (c) or clause (d) of sub-section (1) of section 22, the authority which granted to him or as the case may be, is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing impose upon him by way of penalty a sum not exceeding one and a half times the tax which would have been levied under this Act in respect of the sale to him of the goods, if the offence had not been committed.”
10. As we read section 10(4) it is clear that a dealer has a right to file a revised return before the date prescribed for furnishing the return if a dealer discovers any omission or error in the return furnished by him. In the present case, the dealer filed a revised return even after the date had been prescribed for furnishing of the return for the next quarter but after having received extension from the Commissioner. Nevertheless the sales tax authorities including the Tribunal have found as a fact that there was no omission or error on the part of the dealer in filing the original return and that the original return did not contain the correct figures of sale because of a deliberate act on the part of the dealer. The dealer deliberately filed inaccurate particulars and suppressed the sale in the original return so that the tax which should have been paid to the sales tax authorities was retained by him for some more time. The sales tax authorities have called this default as being systematic and it has further been held that the dealer has been practicing this for the last many years. It is clear therefore that the furnishing of the incorrect particulars in the first return was a deliberate act on the part of the dealer. Section 10(4) gives a right to the dealer to furnish a revised return if the earlier return gives inaccurate particulars by reason of any omission or error which is discovered by the dealer. Where the dealer, as in the present case, all along knew that he was furnishing inaccurate particulars then it could not be said that section 10(4) of the Act was applicable to the present case. There was no discovery of omission or error by the dealer, after the filing of the first return, because the dealer all along knew that the return which he was furnishing originally was an incorrect return.
11. The provisions of section 22A would clearly apply in the present case. The revised returns had to be ignored because they had not been filed because of a discovery of omission or error on the part of the dealer. The device which the dealer had sought to adopt was, rightly, not accepted by the department and in determining whether the particulars of the sales have been concealed or inaccurate particulars of the sales furnished, on the facts in the present case, it is the first return which had to be seen and not the revised return. Had the revised returns been as a result of honest and bona fide omission or error the position may have been different but we make no observation in relation thereto. If, as in the present case, there was no omission or error in filing of the original return and inaccurate particulars were deliberately given then we have no hesitation in coming to the conclusion that the provisions of section 22A were attracted. The conclusion of the Sales Tax Department in this behalf was fully justified.
12. For the aforesaid reasons the question of law is answered in favor of the respondents and against the dealer. The respondents will be entitled to costs.
13. Reference answered in the affirmative.