JUDGMENT Anshuman Singh, J.
1. The facts giving rise to these revisions are that the assessee is a public limited company incorporated under the Companies Act and has its registered office at Ramji Bhai Marg, Ballard Estate, Bombay. It has a factory in the State of Uttar Pradesh at Clutterbukganj, in the district of Bareilly where it carries on the business of manufacture of match boxes. The Bareilly unit of the assessee is registered under the U.P. Sales Tax Act (hereinafter referred to as "the Act") and the Central Sales Tax Act (hereinafter referred to as the "Central Act"). During the assessment years 1976-77 and 1977-78 the assessee opened a branch at Allahabad, which was being supervised by the assessee's Calcutta office. Under some legal advice the Calcutta office got the Allahabad branch registered separately as a dealer under the Act. The Allahabad branch had some depots in the eastern Uttar Pradesh. It has been alleged by the assessee that the Bareilly factory which was separately registered at Bareilly was not aware about the registration of the Allahabad branch as a separate dealer. The sales figures were sent by the Allahabad branch and the depots attached thereto to the Calcutta office where the returns under the provisions of the Act were prepared and sent to Allahabad along with the amount of tax by bank drafts to be deposited at Allahabad itself. At the time of assessment it transpired that the Allahabad branch could not be separately assessed as two assessments cannot be made against one company even though it may have been separately registered at two places and consequently the file pertaining to the Allahabad branch was transferred by the sales tax department from Allahabad to Bareilly. After receipt of the files at Bareilly it was discovered that for the months of June, 1976 to March 1978 the monthly returns were filed late, i.e., beyond the prescribed time under the Act and the tax due was also deposited after the expiry of the prescribed period. Consequently the Assistant Commissioner (Assessment), Sales Tax, Bareilly Range, Bareilly, who was the assessing authority of the assessee's Bareilly factory, issued notices under Section 15-A(1)(a) of the Act to the assessee to show cause as to why penalty for the late filing of the return and not depositing the tax within the prescribed time should not be imposed. The said notices were contested by the assessee and it was pleaded by the assessee that there was sufficient cause for not submitting the returns in time as well as not depositing the due tax. The contention raised on behalf of the assessee was, however, repelled by the assessing authority and the penalty as contemplated under Section 15-A(1)(a) of the Act was imposed by various orders. The assessee feeling aggrieved against the orders of imposition of penalty in all the cases, filed separate appeals under Section 9 of the Act before the Deputy Commissioner (Appeals), Sales Tax, Bareilly, who upheld the orders of the assessing authority but reduced the penalty except for the months of November and December 1976 and the penalty for the said two months was knocked off. The assessee feeling further aggrieved against the orders passed by the Deputy Commissioner (Appeals), dismissing the eighteen appeals of the assessee in part preferred second appeals under Section 10 of the Act before the Tribunal. The Tribunal dismissed the appeals for the months of June, July, August and October 1976, and February 1977, allowed the appeals for the months of September 1976 and March, June and October 1977, and partly allowed those for the months of January, May, July, August, September and December 1977 and January, February and March 1978, The assessee feeling aggrieved against the aforesaid order of the Tribunal has come to this Court in the instant fourteen revisions under Section 11 of the Act. Since the questions involved in all the aforesaid revisions are common, they are being disposed of by a common judgment with the consent of the parties.
2. I have heard Sri Bharatji Agarwal, learned counsel appearing for the assessee and since no standing counsel was present on behalf of the Revenue I asked Mr. Kunwar Saxena, Deputy Commissioner, Sales Tax, who is the representative of the Revenue, to assist the court. Before, deciding the controversy involved in the instant cases it is relevant to refer to the various dates. The following is the chart showing the due dates of filing the returns, the dates on which they were submitted and how much delay was caused :
Month Return due on Return despatched Delay caused June 1976 31-7-1976 12-8-1976 12 days July 1976 31-8-1976 15-10-1976 45 days August 1976 30-9-1976 16-10-1978 15 days October 1976 30-11-1976 6-12-1976 6 days January 1977 28-2-1977 8-3-1977 8 days February 1977 20-3-1977 26-3-1977 28 days May 1977 30-8-1977 5-7-1977 19 days July 1977 31-8-1977 15-9-1977 30 days August 1977 30-9-1977 14-10-1977 30 days September 1977 31-10-1977 14-11-1977 24 days December 1977 31-1-1978 8-2-1978 14 days January 1978 28-2-1978 13-3-1978 30 days February 1978 20-3-1978 31-3-1978 17 days March 1978 30-4-1978 5-5-1978 25 days
3. It would be relevant here to refer to the provisions of Section 15-A(1)(a) of the Act which reads as under :
"has, without reasonable cause failed to furnish the return of his turnover or to furnish it within the time allowed and in the manner prescribed, or to deposit the tax due under this Act, before furnishing the return or along with the return, as required under the provisions of this Act."
4. A perusal of the language used in the aforesaid provisions clearly indicates that the assessee will be liable to pay penalty if he fails to furnish the return or to deposit the tax due within the prescribed period without reasonable cause. Therefore the condition for imposition of penalty is that the assessee must fail in showing reasonable cause. In my opinion it is further incumbent on the part of the authorities under the Act to record a finding for justifying the imposition of penalty that the assessee has failed to show any reasonable cause. Mr. Bharatji Agarwal, learned counsel appearing for the assessee, contended that the Tribunal did not record any finding that the assessee has failed to furnish the return within the prescribed period without reasonable cause. He further contended that there is no finding that the assessee has failed to submit the returns within time without any reasonable cause and in support of his contention he has placed reliance on a decision of this Court in Spencer and Company Ltd. v. Commissioner of Sales Tax 1980 UPTC 121. I have gone through the said decision and I find myself in full agreement with the proposition of law laid down in the said case that in the absence of any finding that there was no reasonable cause for late filing of return and non-deposit of tax, the order of imposition of penalty could not be maintained. It is not in dispute that no such finding has been recorded by the Tribunal in its judgment.
5. The next limb of the argument of the counsel for the assessee is that the Tribunal has justified the imposition of penalty on the ground that the assessee did not file any application for extension of time for filing the return or depositing due tax. He contended that non-filing of application for extension of time could not be equated with the absence of reasonable cause. This Court in the case of Spencer and Company Ltd. 1980 UPTC 121, has also dealt with this aspect of the matter and has held that mere non-filing of application for extension of time could not be equated with the absence of reasonable cause, which, according to me, is sound and proper proposition of law and as such this ground also falls to the ground and assuming that the assessee did not apply for extension of time for filing the returns or depositing the tax it could not be a ground for imposition of penalty under Section 15-A(1)(a) of the Act.
6. Learned counsel for the assessee further contended that the assessee has deposited interest under Section 8(1) of the Act at the rate of 2 per cent per month as he failed to deposit the tax due within time and on the strength of the said fact he contended that the Revenue has not suffered any loss on account of late filing of return or non-deposit of tax due and inasmuch as the Revenue has been fully compensated by the interest deposited by the assessee, the imposition of penalty was wholly unwarranted, in the circumstances of the case. In support of this contention he has invited my attention to a decision rendered by me in the Commissioner of Sales Tax v. Wire-Cond Delhi (P.) Ltd. 1986 UPTC 175 wherein I have taken the view that if the tax due is deposited along with interest, the penalty under Section 15-A(1)(a) of the Act could not be imposed.
7. Counsel for the assessee also contended that the assessee always acted bona fide and there were no mala fides on the part of the assessee in not having filed the returns in time or in not depositing the due tax in time. To demonstrate his bona fides he has referred to the facts that in some of the months the assessee even got the bank draft prepared before the due date of filing the returns and in some months the delay in preparation of the drafts is of a few days which is very negligible. He contended that the fact that the assessee got prepared drafts for few months even in advance though they were received later could not be also a ground for imposition of penalty under Section 15-A(1)(a) of the Act.
8. Mr. Kunwar Saxena, Deputy Commissioner, Sales Tax, who was asked to assist the court as mentioned above in the absence of any Standing Counsel, has very ably assisted me and has referred to the four circumstances mentioned in the order of the Tribunal on the basis of which he asserted that the imposition of penalty was wholly justified. The first circumstance referred to in the order of the Tribunal is that the assessee had knowledge that the returns had to be filed within the specified period ; secondly, that the assessee never applied to the Sales Tax Officer for time to file the returns ; thirdly, the assessee was in the habit of filing late returns ; and fourthly, that the Tribunal recorded a finding that there was an intention behind not filing the returns in time when the company was a big organisation. I have given my thoughtful consideration to all the facts which have weighed with the Tribunal and I am of the opinion that none of the grounds are such which may justify imposition of penalty. It is not the case of the parties that the assessee had no knowledge. The assessee had knowledge that he has to file returns and he has in fact filed the returns for all the months. Secondly, the ground that he did not apply to the Sales Tax Officer for extension of time has already been held by this Court in Spencer and Company Ltd. 1980 UPTC 121 that this could not be a ground for imposition of penalty. Thirdly, the mere fact that the assessee submitted returns not within time cannot necessarily lead to the inference that he has any mala fide intention in not filing the returns in time particularly when the assessee voluntarily deposited the interest under Section 8(1) of the Act which proves the bona fides of the assessee.
9. One of the peculiar features of the present cases is that the modus operandi of the assessee of submitting returns and depositing tax from Calcutta office has not been disputed rather it has been accepted by the Deputy Commissioner (Appeals) as well as by the Tribunal. It has been vehemently urged on behalf of the Revenue that in the cases in which the returns were despatched prior to the due date of filing the returns though they were received later, the Tribunal has knocked off the penalty and the Tribunal has imposed penalty only in those cases in which the returns were despatched after the due date of filing the returns. The said argument has no legs to stand on and falls to the ground inasmuch as the returns for the month of September, 1976, which was to be submitted on 31st October, 1976, and was despatched on 1st November, 1976, the imposition of penalty in the said months was knocked off by the Tribunal and as such a desperate attempt was made on behalf of the Revenue to draw a distinction which is wholly fallacious and in my opinion there was no material before the Tribunal to have adopted different standard in deciding the cases for the months in question.
10. Apart from this, the delay in filing the returns according to the chart shown above appears to be nominal and of few days except in the case for the month of July, 1976, where it is about 45 days. Even for that month the due date of filing the return was 31st August, 1976. whereas the bank draft was prepared on 20th September, 1976, which fact is fortified by the narration of the fact in the order of the Deputy Commissioner (Appeals).
After hearing counsel for the parties and taking into consideration the various submissions made on either side and also on the basis of the decisions mentioned above, I am of the opinion that the order passed by the Tribunal cannot be sustained and deserves to be set aside.
19. In the result the revisions succeed and are allowed. The orders passed by the Tribunal are set aside and the penalty imposed on the assessee is knocked off. However, the parties shall bear their own costs.
20. Let a copy of this order be sent to the Tribunal concerned as contemplated under Section 11(8) of the Act for passing necessary orders.