[2011] 46 VST 1 (Bom) - RS Goyal & Associates

VATLaws (Readable Version) - Thursday, January 10, 2013 

[2011] 46 VST 1 (Bom) 

[IN THE BOMBAY HIGH COURT] 

Additional Commissioner of Sales Tax, VAT III, Mumbai 

V. 

Ankit International 

DR. CHANDRACHUD D.Y. AND SAYED A.A. JJ. 

September 15 2011 

HF ♦ Assessee, including dealer (Registered or Unregistered) 

VALUE ADDED TAX—PENALTY—FAILURE TO FURNISH AUDIT REPORT WITHIN PRESCRIBED 

PERIOD—COMMISSIONER—DISCRETION CONFERRED TO IMPOSE PENALTY EXTENDS ALSO TO 

QUANTUM OF PENALTY TO BE IMPOSED—MAHARASHTRA VALUE ADDED TAX ACT, 2002 (9 OF 2005), 

S. 61(2). 

CONSTRUCTION OF TAXING STATUTES—CONSTRUCTION THAT FAVOURS ASSESSEE TO BE 

PREFERRED. 

A penalty under section 61(2) of the Maharashtra Value Added Tax Act, 2002, was levied on the 

respondent-assessee for furnishing the audit report for the period from April 1, 2006 to March 31, 2007 beyond 

the period prescribed and that order was confirmed in appeal by the Joint Commissioner. The Tribunal in 

second appeal reduced the penalty holding that the delay on the part of the respondent was not deliberate. On 

an appeal contending that once the Commissioner came to the conclusion that a penalty was imposable he 

had no further discretion in regard to the extent of the penalty: 

Held, that the State Legislature had in section 61(2) of the Maharashtra Value Added Tax Act, 2002, clearly 

conferred a discretion on the Commissioner to impose a penalty. That being the position mere use of the words 

“equal to one tenth per cent of the total sale” could not lead to the conclusion that there was no discretion in 

regard to the quantum of the penalty and that a penalty only in an amount equal to one tenth per cent of the 

total sales could be imposed. The Legislature having used the word “may”, a clear provision was required if the 

Act intended to oust the discretion on the quantum, which was not the case. The proviso to sub-section (2) was 

an exception and did not control the substantive part of section 61(2). The substantive part of sub-section (2) of 

section 61 conferring a discretion upon the Commissioner was not diluted by the proviso to sub-section (2). 

Therefore the order by the Tribunal did not warrant any interference. 

Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) and State of Madhya Pradesh v. Bharat Heavy 

Electricals [1997] 106 STC 604 (SC) applied. 

If two views in regard to the interpretation of a provision are possible, the court would be justified in adopting 

that construction which favours the assessee. 

Commissioner of Income-tax v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC) and Mauri Yeast India Pvt. 

Ltd. v. State of U. P. [2008] 14 VST 259 (SC) followed 

Sales Tax Appeal No. 9 of 2011 decided on September 15 2011 

Ms. Uma Palsuledesai, AGP, for the appellant 

C.B. Thakar for the respondent 

This copy was printed from VATLaws licensed to: R.S. Goyal


Cases referred to : 

Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) applied 

State of Madhya Pradesh v. Bharat Heavy Electricals` [1997] 106 STC 604 (SC) applied 

Commissioner of Income-tax v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC) followed 

Mauri Yeast India Pvt. Ltd. v. State of U.P. [2008] 14 VST 259 (SC) followed 

Carpenter Classic Exim P. Ltd. v. Commissioner of Customs (Imports) [2010] 2 GSTR 443 (SC) 

referred 

Commissioner of Central Excise v. Sunil Silk Mills [2011] 267 ELT 438 (SC) referred 

Commissioner of Income-tax v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC) referred 

Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) referred 

Mauri Yeast India Pvt. Ltd. v. State of U.P. [2008] 14 VST 259 (SC) referred 

Nitco Paints Ltd. v. State of Maharashtra [2011] 42 VST 71 (Bom) referred 

State of Madhya Pradesh v. Bharat Heavy Electricals [1997] 106 STC 604 (SC) referred 

State of Rajasthan v. D.P. Metals [2001] 124 STC 611 (SC) referred 

Union of India v. Dharamendra Textile Processors [2008] 306 ITR 277 (SC) [2008] 18 VST 180 (SC) 

referred 

Union of India v. Krishna Processors [2010] 2 GSTR 521 (SC) referred 

Union of India v. Rajasthan Spinning & Weaving Mills [2010] 1 GSTR 66 (SC) referred 

The judgment of the court was delivered by 

-------------------------------------------------- 

JUDGMENT 1 

DR. D.Y. CHANDRACHUD J.—This appeal filed by the Revenue raises a question as regards the 

interpretation of the provisions of section 61(2) of 

the Maharashtra Value Added Tax Act, 2002 ("the MVAT Act"). The Commissioner 

of Sales Tax is in appeal against a decision of the Maharashtra 

Sales Tax Tribunal dated October 5, 2010, by which the Tribunal in an 

appeal filed by the assessee reduced the penalty imposed for the belated 

filing of an audit report for the year 2006-07 to Rs. 25,000. The submission 

of the Revenue is that under section 61(2) while there is a discretion vested 

in the Commissioner whether or not to impose a penalty, once the 

Commissioner decides to impose a penalty it has to be in an amount equal 

to one tenth per cent of the total sales of the assessment year. In other 

words, the contention of the State is that while there is a discretion on 

whether or not a penalty should be imposed in the first place, no discretion 

is conferred by section 61(2) to reduce the amount of penalty, once the 

Commissioner comes to the conclusion that a penalty is liable to be 

imposed. 

We admit the appeal on the following substantial questions of law (as 

recast by the court to bring out the nature of the controversy in the appeal): 

"(i) Does section 61(2) of the MVAT Act confer a discretion on 

whether or not a penalty should be imposed as well as on the 

quantum of penalty? 

(ii) In the event that the Commissioner holds that a penalty has to 

be imposed under section 61(2) upon the failure of a dealer to furnish 

an audit report within the prescribed period, does the Commissioner 

have the discretion to impose a penalty less than one tenth per cent 



of the total sales? 

(iii) Is the reduction in the quantum of penalty from Rs. 83,013 to 

Rs. 25,000 justified in the facts and circumstances of the case?" 

The respondent is a registered dealer under the provisions of the MVAT 

Act, 2002. The respondent filed an audit report under section 61 in the 

1 Oral. 

Page No: 3 

prescribed form (form No. 704) for the period April 1, 2006 and March 31, 

2007 beyond the period prescribed. The Deputy Commissioner of Sales 

Tax (25), Business Audit Unit 4, Mumbai, issued a notice to show cause to the 

respondent as to why a penalty should not be imposed under section 61(2) 

for a delay in filing the audit report. By an order dated August 31, 2009, the 

Deputy Commissioner of Sales Tax imposed a penalty of Rs. 83,013. This 

order was confirmed in appeal by the Joint Commissioner of Sales Tax on 

May 17, 2010. The Tribunal in second appeal reduced the penalty by its 

impugned order dated October 5, 2010 to Rs. 25,000 holding that the delay 

on the part of the respondent was not deliberate. The Tribunal accepted 

the explanation of the respondent that the person who had conducted the 

audit for 2005-06 took up employment elsewhere and when this fact had 

come to the knowledge of the respondent, a business audit for 2006-07 

was conducted and an audit report was filed, though belatedly. The 

Tribunal held that the delay was not deliberate. In the circumstances, the 

penalty was remitted to the extent of 30 per cent. The total penalty levied 

was in the amount of Rs. 25,000. 

In support of the appeal, counsel appearing on behalf of the appellant 

submits that (i) under section 61(2) the Commissioner has a discretion 

whether or not to impose a penalty in the first place but once he comes to 

conclusion that a penalty is liable to be imposed, he has no further 

discretion in regard to the extent of the penalty; (ii) the words used in the 

provision are "equal to" one tenth per cent of the total sales; (iii) the 

penalty must be equal to an amount representing one tenth per cent of the 

total sales and not any amount lower; and (iv) the decision of the Supreme 

Court in Union of India v. Dharamendra Textile Processors [2008] 18 VST 

180 (SC); [2008] 306 ITR 277 (SC); [2008] 231 ELT 3 (SC) would advance 

this proposition. 

On the other hand, counsel appearing on behalf of the assessee 

submitted that (i) the Legislature has conferred a discretion upon the 

Commissioner, whether or not to impose a penalty and the discretion also 

extends to the quantum of penalty to be imposed; (ii) the decision of the 

Supreme Court in Dharamendra Textile [2008] 18 VST 180 (SC); [2008] 

306 ITR 277 (SC); [2008] 231 ELT 3 (SC) turned on the provisions of section 

11AC of the Central Excise Act, 1944 in which the levy of the penalty is 

mandatory and hence the decision has no application to the provisions of 

section 61(2) of the MVAT Act, 2002 in which the imposition of a penalty is 

not mandatory, but discretionary; (iii) in the event that two constructions 

are possible a construction which favours the assessee should be adopted; 

(iv) the Tribunal has consistently taken the same position which has not 

Page No: 4 



been challenged by the Revenue; (v) unless a discretion were to be 

construed to have been granted to the Commissioner by section 61(2) both 

in regard to the imposition of a penalty and in regard to the extent of the 

penalty the provisions would be confiscatory; and (vi) the Commissioner 

has passed orders imposing arbitrary penalties as high as Rs. 52.92 lakh in 

one case, upon which reliance was placed. 

The rival submissions now fall for determination. 

Section 61 provides for the audit of accounts in certain cases. In clause (1) 

of section 61 (as it stood at the material time), every dealer liable to pay tax, 

if his turnover of sales or as the case may be, of purchases exceeds rupees 

forty lakh in any year, is required to get his accounts in respect of such year 

audited by an accountant within the prescribed period from the end of that 

year and furnish within that period the report of such audit in the 

prescribed form duly signed and verified by such accountant and setting 

forth such particulars and certificates as may be prescribed. Sub-section (2) 

of section 61 provides as follows: 

"(2) If any dealer liable to get his accounts audited under subsection 

(1) fails to furnish a copy of such report within the time as 

aforesaid, the Commissioner may, after giving the dealer a reasonable 

opportunity of being heard, impose on him, in addition to any tax 

payable, a sum by way of penalty equal to one tenth per cent of the 

total sales: 

Provided that, if the dealer fails to furnish a copy of such report 

within the period prescribed under sub-section (1), but files it within 

one month of the end of the said period, and the dealer proves to the 

satisfaction of the Commissioner that the delay was on account of 

factors beyond his control, then no penalty under this sub-section 

shall be imposed on him." 

Prior to its amendment by Maharashtra Act 25 in 2007, sub-section (2) 

of section 61 provided for a sum by way of penalty equal to one tenth per 

cent, of the total sales or as the case may be, purchases or a sum of one 

lakh rupees, whichever is less. Upon amendment, the words "or as the case 

may be, purchases or a sum of one lakh rupees, whichever is less" came to 

be deleted. 

The imposition of a penalty in sub-section (2) of section 61 is not 

mandatory. The Commissioner has been conferred with the discretion to 

determine as to whether a penalty should or should not be imposed, if a 

dealer who is liable to get his accounts audited under sub-section (1), fails 

to furnish a copy of the report within the time prescribed. The Legislature 

has provided that the Commissioner "may" impose a penalty after giving 

Page No: 5 

the dealer a reasonable opportunity of being heard. The use of the word 

"may" is clearly suggestive of the fact that imposition of a penalty is not 

mandatory. The legislative intent has been emphasized in the requirement 

of furnishing to the dealer a reasonable opportunity of being heard before a 

penalty is imposed. The fact that the Legislature contemplated an opportunity 

of being heard is indicative of the intent of the Legislature that the 

explanation which the dealer may have, has to be considered before the 

Commissioner determines as to whether penalty should be imposed. That 

the imposition of the penalty under sub-section (2) of section 61 is not 



mandatory has been emphasized in a judgment of a Division Bench of this 

court in Nitco Paints Ltd. v. State of Maharashtra [2011] 42 VST 71 (Bom) 

in the following terms (para 3 at page 74 in 42 VST): 

". . . Section 61(2) clearly specifies that upon the failure of the 

dealer to get his accounts audited and to furnish a copy of the report 

within the time as prescribed, the Commissioner may after furnishing 

a reasonable opportunity of being heard, impose a penalty at the rate 

stipulated. The law provides that the penalty may be imposed and 

contemplates that a reasonable opportunity should be furnished to 

the dealer. Obviously there would be no occasion to furnish a 

reasonable opportunity of being heard if the liability to levy the 

penalty was automatic. Since the legislation has used the expression 

'may', the imposition of a penalty is discretionary. Undoubtedly such 

a discretion has to be exercised in accordance with law and 

judiciously. . ." 

But the submission which has been urged on behalf of the Revenue is 

that once the Commissioner proceeds to hold that a penalty is liable to be 

imposed, he must necessarily impose a penalty equal to one tenth per cent 

of the total sales. In other words, it is urged that the discretion is whether 

or not a penalty should be imposed and not in regard to the extent of the 

penalty. As a matter of first principle there is no reason for the court to 

restrict, by a process of construction the legislative intent in regard to the 

imposition of penalty by holding that the discretion would extend only to 

the imposition of a penalty and not with regard to the extent of the penalty. 

The Legislature is undoubtedly empowered in its plenary jurisdiction to 

determine whether a penalty is or is not mandatory. For instance the 

provisions in section 11AC of the Central Excise Act, 1944 came up for 

construction before the Supreme Court in the decision in Dharamendra 

Textile [2008] 18 VST 180 (SC); [2008] 306 ITR 277 (SC); [2008] 231 ELT 3 

(SC). Section 11 AC stipulated that where any duty of excise has not been 

levied or paid or has been short-levied or short-paid or erroneously 

Page No: 6 

refunded by reasons of fraud, collusion or any wilful mis-statement or 

suppression of facts, or contravention of any of the provisions of this Act or 

of the Rules made thereunder with intent to evade payment of duty, the 

person who is liable to pay duty as determined under sub-section (2) of 

section 11A, shall also be liable to pay a penalty equal to the duty so determined. 

In this background, the Supreme Court observed as follows (para 28 

at page 206 in 18 VST): 

"In Union budget of 1996-97, section 11AC of the Act was introduced. 

It has made the position clear that there is no scope for any 

discretion. In paragraph 136 of the Union budget reference has been 

made to the provision stating that the levy of penalty is a mandatory 

penalty. In the notes on clauses also the similar indication has been 

given." 

The words used in sub-section (2) of section 11A are "shall also be liable 

to pay a penalty equal to the duty so determined". 

The decision in Dharamendra Textile [2008] 18 VST 180 (SC); [2008] 

306 ITR 277 (SC); [2008] 231 ELT 3 (SC) was considered in a subsequent 

Division Bench in Union of India v. Rajasthan Spinning & Weaving Mills 

[2010] 1 GSTR 66 (SC); [2009] 238 ELT 3 (SC). The Supreme Court held as 



follows (page 81 in 1 GSTR): 

"The decision in Dharamendra Textile [2008] 18 VST 180 (SC); 

[2008] 306 ITR 277 (SC); [2008] 231 ELT 3 (SC) must, therefore, be 

understood to mean that though the application of section 11AC 

would depend upon the existence or otherwise of the conditions 

expressly stated in the section, once the section is applicable in a case 

the concerned authority would have no discretion in quantifying the 

amount and penalty must be imposed equal to the duty determined 

under sub-section (2) of section 11 A. That is what Dharamendra 

Textile [2008] 18 VST 180 (SC); [2008] 306 ITR 277 (SC); [2008] 231 

ELT 3 (SC) decides." 

In the case of State of Rajasthan v. D.P. Metals [2001] 124 STC 611 (SC); 

AIR 2001 SC 3076, a three-Judge Bench of the Supreme Court interpreted 

section 78(5) of the Rajasthan Sales Tax Act, 1994 which read as follows 

(page 619 in 124 STC): 

"The incharge of the check-post or the officer empowered under 

sub-section (3), after having given the person in charge of the goods a 

reasonable opportunity of being heard and after having held such 

enquiry as he may deem fit, shall impose on him for possession or 

movement of goods, whether seized or not, in violation of the 

provisions of clause (a) of sub-section (2) or for submission of false or 

Page No: 7 

forged documents or declaration, a penalty equal to the amount of 

five times of the tax leviable on such goods or thirty per cent of the 

value of such goods. . ." 

There, the court laid emphasis on the use of the word "shall" to hold 

that (pages 635 and 636 in 124 STC): 

". . . This provision cannot be read as to imply that the penalty of 

30 per cent is the maximum and lesser penalty can be levied. The 

Legislature thought it fit to specify a fixed rate of penalty and not give 

any discretion in lowering the rate of penalty. The penalty so fixed is 

meant to be a deterrent and we do not see anything wrong in this 1 . . ." 

Thus, the Supreme Court has held that where the Legislature makes its 

intention clear through the use of the word "shall", the provision would be 

mandatory with regard to the quantum of penalty imposable. A similar 

ratio has recently laid down by a three-judge Bench of the Supreme Court 

in Commissioner of Central Excise v. Sunil Silk Mills [2011] 267 ELT 438 

(SC), where rule 96ZQ(5) of the Central Excise Rules, 1944 was being 

interpreted. The penalty involved there was similarly held to be mandatory 

due to the use of the word "shall." 2 

In the present case, the State Legislature has in section 61(2) clearly 

conferred a discretion on the Commissioner to impose a penalty. Once that 

is the position, the mere use of the words "equal to one tenth per cent of 

the total sale" cannot lead to the conclusion that there is no discretion in 

regard to the quantum of the penalty and that a penalty only in an amount 

equal to one tenth per cent of the total sales can be imposed. 

Some guidance in this regard can be obtained from the judgment of the 



Supreme Court in State of Madhya Pradesh v. Bharat Heavy Electricals 

[1997] 106 STC 604 (SC); [1998] 99 ELT 33 (SC). Section 7 of the relevant 

Entry Tax Act in the State of Madhya Pradesh provided that every registered 

dealer who, in the course of his business, manufactures, produces or 

grows any goods specified in Schedule II in a local area in such a manner 

that the goods become local goods in relation to that local area, shall on 

the sale of such goods to any other registered dealer, issue to him a bill, 

invoice or cash memo specifically stating in such a manner as may be 

prescribed, that the goods being sold are local goods in relation to such 

local area and that no entry tax has been paid on such goods. Section 7(5) 

provided that where a registered dealer in the course of his business, sold 

1 Id. at 31 

2 See also Union of India v. Krishna Processors [2010] 2 GSTR 521 (SC); [2009] 15 SCC 58, 

Carpenter Classic Exim P. Ltd. v. Commissioner of Customs (Imports) [2010] 2 GSTR 443 (SC); 

[2009] 11 SCC 293. 

Page No: 8 

local goods to other registered dealers but failed to make the statement as 

referred in sub-section (1), it would be presumed that he has facilitated the 

evasion of entry tax on the local goods so sold and would be liable to pay a 

penalty equal to ten times the amount of entry tax payable on such goods 

as if they were not goods of local origin. The High Court had held that the 

presumption under section 7(5) was not rebuttable and that the penalty of 

ten times of the amount of tax, which could not be reduced, was confiscatory. 

In appeal before the Supreme Court the State of Madhya Pradesh 

made a statement through counsel that the State treated the provision for 

the levy of penalty equal to ten times of the amount of entry tax as a 

maximum penalty and not a fixed amount of penalty leaving no discretion 

for imposition of a lesser penalty. Undoubtedly, therefore, there was a 

concession before the Supreme Court by the State. Moreover, it was urged 

before the Supreme Court by the State that the presumption was rebuttable. 

After recording the submissions, the Supreme Court held as follows 

(page 609 in 106 STC): 

"From the aforesaid it follows that section 7(5) has to be construed 

to mean that the presumption contained therein is rebuttable and 

secondly the penalty of ten times the amount, of entry tax stipulated 

therein is only the maximum amount which could be levied and the 

assessing authority has the discretion to levy lesser amount depending 

upon the facts and circumstances of each case. Construing section 7(5) 

in this manner the decision of the High Court that section 7(5) is ultra 

vires cannot be sustained." (emphasis 1 supplied) 

Now, no doubt, in that case a statement was made before the Supreme 

Court by the State of Madhya Pradesh that the levy of a penalty equal to 

ten times the amount of entry tax was the maximum and was not a fixed 

penalty. Equally, it was observed in paragraph 13 which has been noted 

earlier, that the penalty of ten times the amount of entry tax was only a 

maximum and the assessing authority has the discretion to levy a lesser 

amount, depending on the facts of each case. 

The fundamental principle of law is that a penalty is not imposed merely 

because it is lawful to do so and that the authority has a discretion in that 



regard. The authority has to determine whether a penalty should be 

imposed and if it decides to impose a penalty what is the extent of the 

penalty liable to be imposed. The Supreme Court held in its decision in 

Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) as follows 

(page 214 in 25 STC): 

1 Here italicised. 

Page No: 9 

". . . Penalty will not also be imposed merely because it is lawful to 

do so. Whether penalty should be imposed for failure to perform a 

statutory obligation is a matter of discretion of the authority to be 

exercised judicially and on a consideration of all the relevant circumstances. 

Even if a minimum penalty is prescribed, the authority 

competent to impose the penalty will be justified in refusing to 

impose penalty, when there is a technical or venial breach of the 

provisions of the Act or where the breach flows from a bona fide 

belief that the offender is not liable to act in the manner prescribed by 

the statute. . ." 

The Legislature may of course take away that discretion and make the 

imposition of a penalty mandatory for certain violations. Whether a penalty 

is mandatory is a matter of construing the legislative provision. Here the 

State Legislature by the use of the word "may" has not departed from the 

ordinary rule that a penalty is discretionary. The discretion must extend 

both to whether a penalty should be imposed and on the quantum. The 

Legislature having used the word "may", a clear provision was required, if 

the Act intended to oust the discretion on the quantum, in a case where 

the Commissioner is of the view that a penalty has to be imposed. That is 

not the case. 

Having therefore, considered the submission which has been urged on 

behalf of the appellant, we are of the view that there is no reason to accept 

the contention that the discretion which is conferred by section 61(2) does 

not extend also to the quantum of the penalty. Under the substantive part 

of sub-section (2) of section 61 the State Legislature has conferred a 

discretion on the Commissioner before he imposes a penalty on the dealer 

for failing to furnish a copy of the audited report within the prescribed 

period. The proviso to sub-section (2) states that if the dealer fails to 

furnish a copy of the said report within the prescribed period but files it 

within one month of the end of the period, and the dealer proves to the 

satisfaction of the Commissioner that the delay was on account of factors 

beyond his control, then no penalty under this sub-section shall be 

imposed upon him. Hence, in the circumstances set out that the proviso to 

sub-section (2), no penalty can be imposed at all if the conditions therein 

are fulfilled. The proviso operates when (i) the dealer fails to furnish a copy 

of the report within the prescribed period but files it within one month of 

the end of the period; (ii) the dealer proves to the satisfaction of the 

Commissioner that the delay was for reasons beyond his control. Where 

the proviso applies, no penalty can be imposed on the dealer at all. 

The proviso is an exception and does not control the substantive part of 

section 61(2). The substantive part of sub-section (2) of section 61 also 

confers a discretion upon the Commissioner which is not diluted by the 

This copy was printed from VATLaws licensed to: R.S. Goyal 

Page No: 10


proviso to sub-section (2). 

In any event, we are of the view that if two views in regard to the interpretation 

of section 61(2) are possible, the court would be justified in 

adopting that construction which favours the assessee. (see the decisions of 

the Supreme Court in Commissioner of Income-tax v. Vegetable Products 

Ltd. [1973] 88 ITR 192 (SC) and Mauri Yeast India Pvt. Ltd. v. State of 

U.P. [2008] 14 VST 259 (SC). 

On the facts of the case, the Sales Tax Tribunal has furnished adequate 

reasons for reducing the penalty from an amount of Rs. 83,013 to 

Rs. 25,000. The Tribunal has found that the delay on the part of the assessee 

was not deliberate. That finding does not warrant any interference. 

For these reasons, we answer the questions of law as formulated in the 

affirmative. 

The appeal is accordingly disposed of. There shall be no order as to costs. 

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[2011] 46 VST 1 (Bom) - RS Goyal & Associates

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