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Judgment
N.K. Jain, C.J.-This writ appeal is filed against the order of the learned Single Judge dated 7-1-2000 passed in W.P. No. 43268 of 1999.
It is submitted that in the year 1989-90 appellant-petitioner had caused the entry of printing machinery, printing materials like paper, ink etc., into the local area and the Entry Tax Officer being of the view that the appellant-petitioner was liable for payment of tax, issued a demand notice for payment of a sum of Rs. 70,470/-. The same was challenged in W.P. No. 16393 of 1990. As the petitioner therein had sought for withdrawal of the petition, the same was dismissed as withdrawn by order dated 15-9-1997 with a direction to pay the outstanding amount of tax in 4 instalments within 6 months from the date of order and also permitted the appellant to move waiver application. Thereafter, the 2nd respondent issued notice on 9-11-1999 calling upon the petitioner to pay the penalty of Rs. 1,56,003/- within 7 days from the receipt of the notice. The waiver application made on 16-1-1999 by the appellant-petitioner, was rejected by the 2nd respondent as there were no proper grounds for the same, vide order dated 27-10-1999. The same was challenged in W.P. No. 43268 of 1999. The learned Single Judge while issuing notice granted interim order staying the payment of 50% of the penalty and ultimately, the learned Single Judge dismissed the writ petition with a direction that balance of penalty amount be paid within 4 months from the date of the order, i.e., 7-1-2000. Hence, this writ appeal.
The Division Bench while issuing notice observed that "Counsel states that 50% of the amount of penalty has already been deposited. If that be so, the recovery of the balance amount is stayed till the next date of hearing". The matter has come up before us.
Learned Counsel for the appellant-petitioner submits that the appellant has already deposited the entire amount of tax and despite the waiver application and sufficient reasons to exempt the penalty, rejected application without assigning any reason. She also relied on a Division Bench decision in S.K. Sarawagi and Company (Private) Limited v Government of Karnataka, 1985 Kar. L.J. (Tri. Supp.) 174 (HC).
On the other hand, the learned Additional Government Advocate submits that the case cited is not applicable to the facts of this case as in that case the waiver application was rejected on account of a cryptic endorsement and not considering the request, whereas in the present case, the request for waiver of penalty was considered and on such consideration as there were no proper reasons for waiver of the penalty, the application for waiver was rejected and therefore, the order of the learned Single Judge is not liable to be interfered.
We have heard the learned Counsels for the parties and perused the materials on record.
So far as the legal position is concerned, it is not disputed that one has to pay the tax in time and if it is not paid in time penalty can be imposed. But, the Authorities can waive the same provided sufficient reasons are shown for belated payment of the tax.
The question remains whether in the facts of the given case there is sufficient reason or further reasons are required.
In the instant case, the tax due pertains to the year 1989-90. Admittedly, the payment was not made in time, but belatedly. The ground for waiver is that the appellant-petitioner was under a bona fide belief that he is not a dealer and there was an order of stay on recovery of tax passed by the High Court. The bona fide belief on the part of the assessee that he is not a dealer under the provisions of the Act and therefore not liable to pay tax or that there was an order of stay on recovery of tax passed by this Court in the writ petition filed by the appellant cannot be said to be proper reason to waive penalty and accordingly on consideration of the aforesaid request, the authority has rejected the said request on the ground that it does not constitute proper reason. The appellant-petitioner cannot take advantage of the decision in S.K. Sarawagi''s case, supra, wherein in the waiver application made by the petitioner it was endorsed in a cryptic manner as "I am directed to state that it is regretted that your request for waiver of penalty due from your concern cannot be conceded", whereas in this case, as stated, on consideration the same was not interfered stating that there are ''no proper reasons'' for waiver of penalty.
We have also perused Annexure-C wherein the appellant-petitioner has stated that he was under a bona fide impression that he was not a dealer under the provisions of the Act, and therefore, was not liable to pay tax. A careful perusal of the record reveals that the authorities found that no proper reasons for waiver of penalty were made out and therefore it was not possible to consider the application for waiver and the same was rejected. Otherwise also, an order of stay of recovery of tax in a pending writ cannot be a good ground or absolve the liability to pay penalty for the entry tax for the year 1989-90, which was paid after 5 months of the withdrawal of the earlier W.P. No. 16393 of 1990 on 15-9-1997, i.e., after 9 years. Under the circumstances, in our opinion no further reasons are required and the argument advanced is not acceptable in the facts of the given case. The discretion so exercised cannot be said to be arbitrary or capricious.
On consideration, and as discussed, we find no error or illegality in the detailed order of the learned Single Judge.
The other argument that as the appellant-petitioner has already deposited 50% of the penalty, the balance of penalty can be waived is also not tenable. However, two months'' time is granted to the appellant-petitioner to pay the balance of 50% of penalty, failing which the concerned authority will proceed against the appellant-petitioner as per law. In view of what we have discussed above, no interference is called for. The writ appeal is dismissed accordingly.