P.C. Abdulla vs Sales Tax Officer and Others

Paripoornan, J.—Identical question of law arises for consideration in both the cases. The interpretation of Section 23(3) of the Kerala General Sales Tax Act, 1963 (in short, the Act) arises for consideration. A Bench of this: Court referred O.P. No. 3501 of 1986 to a Full Bench, noticing that there is a conflict between the Division Bench decision in V. Haridas Vs. The Assistant Commissioner, Sales Tax (Assessment), Special and Others, and the decision of a Division Bench in Joy Varghese Vs. State of Kerala and Others, . That is how O.P. No. 3501 of 1986 is coming up before the Full Bench. Writ Appeal 16 of 1988 is preferred against a judgment of a learned Single Judge of this Court rendered in O.P. No. 10425 of 1984, dated 24th August 1987. The O. P, was dismissed with certain directions. The challenge in the said O.P. was against Ext. P-1 order of the Sales Tax Officer, Trivandrum, dated 12ih March 1984, levying penal interest in the sum of Rs. 47,959,91, which was affirmed in Ext. P-4 revisional order by the Deputy Commissioner of Sales Tax (South Zone), Quilon, dated 6th June 1984: Penal interest was levied for non-payment of collected tax. For July and September 1980 the collected tax of Rs. 23645-89 was not paid till 19th January 1981. Similarly the collected tax of Rs. 42,272 for the months of December 1980 and January and February 1981 was not paid till 19th January 1984. In the circumstances, penal interest was worked, out as per Section 23(3) of the Act in the sum of Rs. 47, 959-91. The levy of penal interest was taken up in revision. The Deputy Commissioner of Sales Tax by order dated 6th June 1984 affirmed the levy of penal interest aforesaid. The challenge against Exts. P-1 and P-4 did not succeed before the learned Single Judge, who by judgment dated 24th August 1987 dismissed the O.P. with some directions. Aggrieved by the said decision the Petitioner in the O.P. filed the writ appeal", No. 16 of 1988. A Bench of this Court, by order dated 11th February 1988, referred the matter to a Full Bench for consideration in view of the general importance of the question. In O.P. No. 3501 of 1986- the attack is against levy of penal interest u/s 23(3) of the Act for the assessments made on the Assessee-Petitioner in the O.P. under the Central Sales Tax Act for the assessment years 1982-83, 1983-54 arid 1984-85. For the year 1982-83 by Ext. P-1, dated 13th September 1984, the Petitioner was directed to remit a penal interest of Rs. 27,800-68 for non-payment of collected tax of Rs. 85,754-64. Similarly, by Ext. P-4 dated 4th January 1986, for the year 1983-84 penal interest was levied in the sum of Rs. 23,380 80 for non-payment of collected Central Sales Tax of Rs. 60,488.75 for the period from 1st May 1984 to 31st December 1985. So also by Ext. P-5 dated 4th January 1986, for the year 1984-85 the Assessee-Petitioner was directed to pay penal interest of Rs. 4,638 for non-payment of collected Central Sales Tax for the period from 1st May 1985 to 31st December 1985, collected tax being Rs. 35,675 64. A learned Single Judge of this Court referred the matter to a Division Bench, by order dated 21st October 1986. Later, a Division Bench of this Court, by order dated 26th March 1987 referred the matter to a Full Bench for consideration. That is how O.P. No. 3501 of 1986 has come up before the Full Bench.

In both the cases the penal interest levied u/s 23(3) of the Act is attacked as illegal and without jurisdiction. The ground of attack is the same in both the cases. The plea is that service of a notice of demand in form No. 24 is an essential pre-requisite for the levy of penal-interest u/s 23(3) of the Act. The above plea is sought to be substantiated by the Bench decision of this Court in Joy Varghese Vs. State of Kerala and Others, .

We heard Counsel. The short question that is posed for consideration in both the cases is whether service of a notice of demand is essential for the levy and collection of penal interest specified in Section 23(3) of the Act. According to the Revenue, the service of a notice of demand, as stated by the Petitioners, is unnecessary to fasten liability on the Assessees for payment of penal interest u/s 23(3) of the Act. Both sides placed before us a few decisions in support of their respective pleas.

In order to appreciate the rival pleas advanced before us, we have first to bear in mind that in both the cases the Assessees had opted to pay the sales tax as per their monthly returns. Rule 21(7) of the Kerala General Sales Tax Rules, 1963 (in short, the Rules) and rules 21(10) govern such payment. Rules 18(1) and (3) deal with annual return and final assessment. For the purpose of resolving the controversy in these cases, we have to construe Section 23(1)(3) of the Act and rules 18(1) and (3), 21(7) read with 21(10), and 31 of the Rules and Form No. 24. Form No. 14 deals with notice of provisional annual demand relevant under Rule 18(3) and Rule 21(2). Similarly, Form No. 14D deals with a notice for provisional monthly demand under Rule 21(10). The core of the controversy is that a service of notice of demand as stipulated in Form No. 24 is a necessary pre-requisite for levy and collection of penal interest u/s 23(3) of the Act, read with the Rules. We shall Extract section (1) and (3) of the Act, and rules 18 (1) and (3), 21(7) and (10), and 31 of the Rules and Form Nos. 14, 14D and of the Rules.

Section 23(1) and (3) of the Act:

Payment and recovery of tax.--(1) The tax assessed or any other amount demanded under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of demand, not being less than twenty one days from the date of service of the notice. If default is made in paying according to the notice of demand, the whole of the amount outstanding on the date of the default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax or other amount under this Act:

Provided that the time limit of twenty one days for a notice under this Sub-section shall not apply to casual traders.

* * 3. If the tax or any other amount assessed or due under this Act is not paid by any dealer or other person within the time prescribed therefore in this Act or in any rule made there under and in other cases within the time specified therefore in the notice of demand, or within the time allowed for its payment by the appellate or revisional authority, as the case may be, or if. payment is permitted in instalments by any of the authorities empowered in this behalf, any such instalment is not paid within the time specified therefore, the dealer or other person shall pay, by way of penal interest, in the manner prescribed, in addition to the amount due, a sum equal to,-

(a) one per cent of such amount for each month or part thereof for the first three months after the date specified for its payment;

(b) two per cent of such amount for each month or part thereof subsequent to the first three months aforesaid.

Rules 18 (1) and (3) of the Rules:

Annual return and final assessment.-(1) Every dealer liable to pay tax under the Act, irrespective of the quantum of his total turnover and every dealer whose total turnover for the year is not less than the minimum specified in Section 5 or Section 5A, shall, on or before the first day of May in every year, submit to the assessing authority of the area in which his principal place of business is situated, a return in Form. 8 showing the total turnover and; taxable turnover for the preceding year, the amounts by way of tax or taxes due on the taxable turnover during the year.

** ** ** . 3. Every dealer liable, to submit a return in Form 8 under Sub-rule (1) or (2) shall submit along with the return a receipt from a Government Treasury (or at least note in the return the name of the Treasury and the number and the date of the receipt, in which case he shall produce the receipt before the assessing authority whenever required to do so), crossed cheque or crossed demand draft in favour of the assessing authority for the full amount of tax or taxes due for the year on the basis of the return or for the full amount of tax or taxes actually collected by him, whichever is higher after deducting there from the provisional tax if any, paid already for the year, failing which the assessing authority shall serve upon the dealer a demand notice in Form 14 and the dealer shall pay the sum demanded within the time and in the manner specified therein.

Rules 21(7) and (10) of the Rules:

Submission of monthly returns.

** ** 7. Every dealer who is liable to pay tax under the Act and whose taxable turnover in a year is not less than ten thousand rupees, including those liable to be assessed u/s 7 and every dealer who is required so to do by the assessing authority by a notice, shall submit so as to reach the assessing authority within 25 days of the publication of the Kerala General Sales Tax (Amendment) Rules, 1983 in the Gazette or receipt of the notice, as the case may be, a return in Form 9 showing the total and taxable turnover preceding to the publication of the Kerala General Sales Tax (Amendment) Rules, 1983, in the Gazette, the amount or amounts actually collected, by way of tax or taxes and the amount of tax due on the taxable turnover for each of the months preceding to the publication of the Kerala. General Sales Tax (Amendment) Rules, 1983 in the Gazette beginning from April 1982. Along with the return or returns for the preceding month or months, he shall also submit a receipt from a Government Treasury (or atleast note in the return the name of the Treasury and the number and date of receipt, in which case he shall produce the receipt before the assessing authority whenever required to do so), a crossed cheque or a crossed demand draft in favour of the assessing authority for the full amount of the tax or taxes payable oil the taxable turnover for the preceding month or months to which the return(s) relate(s). Thereafter, he shall submit so as to reach the assessing authority on or before the 15th day-of every month, a return in Form 9 for the preceding month together with proof in, any of the modes mentioned above, of payment of the full amount of the tax due for that month.

** ** ** 10. If the return is submitted without a treasury receipt, crossed cheque or crossed demand draft for the full amount of the tax payable in favour of the assessing authority, the assessing authority shall serve upon the dealer a notice in form 14D and the dealer shall pay the sum demanded within the time and in the manner specified therein.

Rule 31 of the Rules:

Mode of payment of penalty.-(1) The penal interest payable under Sub-section (3) of Section 23 shall be remitted into the Government Treasury or paid by means of crossed cheque or crossed demand draft in favour of the assessing authority concerned either separately or along with the tax.

(2) The assessing authority concerned may calculate the penal interest payable under Sub-section (3) of Section 23 from time to time and may issue a notice in Form 24. On receipt of the notice the dealer shall pay the penal interest due in the manner specified in Sub-rule (1)

Explanation-The dealer or other person concerned shall however be liable to pay the penal interest under Sub-section (3) of Section 23 whether he receives a notice under this sub-rule or not.

Form No. 14 of the Rules:

FORM No. 14 Notice of Provisional Annual Demand [See rules 18 (3) and 21 (ii)]

Assessment No. ........

To

...(Dealer)

Take notice that on the basis of the return in Form No. 8 furnished by you for the year ending......19.... you are liable under the Kerala General Sales Tax Act, 1963, (Kerala Act 15 of 1963) to pay a tax of Rs. ..... (Rupees.........) (in words) only for the year and that after deducting the total amount of monthly payments made by you towards the tax for the year, in response to the notice of provisional assessment and demand , No dated........ and the further tax paid along with the return, you have still to pay a (further) Sum of Rs......(Rupees......) (in words) only. This amount shall be paid within thirty days from the date of service of this notice by crossed cheque or crossed demand drafts in favour of the undersigned or by remittance into the Government Treasury at........failing which the amount will be recovered as if it were an arrear of land revenue and/or fine imposed by a Magistrate and you will also be liable to pay the penalty prescribed under Sub-section (3) of Section 23.

The above demand is only provisional and any further amount to be paid by you or any refund to be made to you will be communicated after final assessment.

Form Mo. 14-D of the Rules:

FORM No. 14D

Notice for provisional monthly demand when monthly return is submitted without proof of payment of the tax due/in full

[See Rule 21 (10)]

Assessment No......

To

(Dealer) ...........

Take notice that on the basis of the return in Form 9 furnished by you for the month of.......19....you are liable under the Kerala General Sales Tax Act, 1963. (15 of 1963) to pay tax of Rs. .... (Rupees....) (in Words) for the month and you have still to pay a/the (further)-sum of Rs........ (Rupees.....) (in-words) only. This amount shall be paid along with penal interest, if any, due u/s 23(3) within 30 days from the date of service of this notice by crossed cheque or crossed demand, draft in favour of the undersigned or by remittance into the Government Treasury at...... failing which, the amount will be recovered as if it were an arreat of land revenue and/or fine imposed by a Magistrate and you will also be liable to pay the penalty prescribed u/s 45A of the Act.

The above demand is only provisional and any further amount to be paid by you or any refund to be made to you will be communicated after final assessment.

Turnover reported in the return

FORM No. 9

Nature of goods: Rate of tax: Turnover Tax due: Total Rs. Tax if any Paid Balance Penal interest due

Place:

Date:

Assessing Authority.

Note:-Where payment is made by cheque, the cheque shall be crossed and shall be such as may be received by the Government Treasury concerned.

Form No. 24 of the Rules:

FORM No. 24

Notice of Demand of Penal Interest

(See Rule 31)

Assessment No.......

To

..........................

...........................

Whereas you have defaulted to make payment of the sum of Rs. ..... (in figures) Rupees......(in words) being the balance of tax due from/assessed on you as per the demand notice served on...............within the date fixed for payment thereof.

And whereas by reason of your default to make payment of the arrears of such balance of tax/tax, a further sum of Rs.........(in figures) Rupees............(in words) has been imposed on you as penal interest u/s 23(3) of the said Act.

You are hereby directed to pay the sum of Rs.....(in figures) Rupees.......(in words) being the balance of tax due/tax and a sum of Rs..........(in figures) Rupees........(in words) being the penal interest imposed on you as aforesaid on or before by crossed cheque or crossed demand draft in favour of the undersigned or by remitting into the Government Treasury, failing which the sum shall be recoverable from you as an arrear of land revenue and/or as a fine imposed by a Magistrate.

Signature of the Assessing Authority Place (With the seal of office). Date:

Section 23 of the Kerala General Sales Tax Act, 1963, was amended by Act 12 of 1976, Act 21 of 1979 and Act 6 of 1988. Section 23(3) of the Act as it stood before Act 12 of 1976 along with Rule 31, and Forms 11 and 24 came up for consideration before a Bench of this Court in Burmah Shell Oil Storage and Distributing Co. of India Ltd. Vs. The Sales Tax Officer and Others, . In that case the Assessee was paying tax under Rule 21 method. The payments had to be made before the 10th of every month. The Assessee company committed default on twelve occasions. Such delay in the payments ranged from one day to nine days. The plea of the Assessee was that the delay was not wilful. There was no mens rea for the default. Levy of "penalty" as specified in Section 23(3), without giving notice to the Assessee was unauthorised. Negativing the said pleas, T.C. Raghavan, C.J., speaking for the Bench, stated the law thus: at page 434 Burmah Shell Oil Storage and Distributing Co. of India Ltd. Vs. The Sales Tax Officer and Others, at P. 434:

The language of Section 23(3) appears to make the payment contemplated by the section an absolute liability on the Assessee. If the tax assessed is not paid within the time allowed, whatever be the reason for the non-payment, the dealer or other person shall pay, by way of penalty, in the manner prescribed, in addition to the amount due, a sum equal to half percent of such amount for each month or part thereof, for the first three months, and one percent of such amount for each month or part thereof, subsequent to the three months. There is no question of the taxing authority exercising, any discretion under the statute; no discretion is contemplated or vested in the authority; the penalty at the particular rate mentioned in the section automatically clinches on the failure to pay the amount within the time mentioned in the section. If there is no discretion left in the assessing authority by the statute itself, there is no question of the exercise of discretion being quasi-judicial and no question of giving notice to the Assessee before the exercise of discretion. As we have stated already, the penalty is in the nature of interest by way of damages payable on the defaulted amount at the particular rate mentioned in the section itself.

At page 435 the learned Chief Justice again observed thus:

...even if we construe the penalty under, the section as a criminal imposition (which, we confess, we are not able to do), still the language of the section makes it abundantly clear that the intention of the Legislature was to make it an absolute liability without mens rea..........the present, case will come within the last category, where, though the proceeding is criminal in form, still, it is only a summary mode of enforcing a civil right....

Section 23(3) of the Kerala General Sales Tax Act, 1963, came up for consideration again before Anr. Division Bench of this Court in V. Haridas Vs. The Assistant Commissioner, Sales Tax (Assessment), Special and Others, . "In that case arrears of sales tax were due from an Assessee in respect of assessments for the years 1970-71 to 1973-74. On the Assessee''s motion the Government allowed him to pay the amount in instalments. The Assessee paid the instalments in time arid the arrears were liquidated. In spite of prompt payment of the instalments, penalty (penal interest) was imposed fox non-payment of arrears due. The plea of the Assessee was that the Assessee had paid the arrears in instalments as per Government order, Ext. P-2, and so no penalty was impossible. The Division Bench noticed the earlier decision in Burmah Shell Oil Storage and Distributing Co. of India Ltd. Vs. The Sales Tax Officer and Others, and held that: the liability to pay interest is automatic and arises by operation of law. It was further held that there was no provision enabling the Government to pass an order granting instalment payment. The Division Bench held that the officer was not required to draw any formal order, imposing the penalty on the Assessee, since the accrual of penal interest is automatic on the occurrence of the default. V.P. Gopalan Nambiar, C.J., delivering the judgment of the Bench in V. Haridas Vs. The Assistant Commissioner, Sales Tax (Assessment), Special and Others, at p. 30, stated the law thus:

It may be that without drawing up any formal order imposing a penalty u/s 23(3) of the Act the authorities may be able to, recover the penalty u/s 24, as the liability to pay penal interest is automatic as explained in these decisions. If so, it would be open to the department to pursue such steps for recovery of penal interest as they might be advised to take. There is no provision in law or under the statute to pass orders of the type of exhibits P-5 to P-7.

(Exts. P-5 to P-7 orders were passed by the Sales Tax Officer imposing penalty on the Petitioner for default of payment of arrears of sales tax).

The levy or claim of interest for failure to pay the fax along with the returns, as enjoined by the statute, came up for consideration before the Supreme Court in Associated Cement Company Limited Vs. Commercial Tax Officer, Kota and Others, . In that case the Assessee had filed returns for the period August 1, 1973 to July 31, 1974, i.e. the assessment year 1974-75. In the said return the Assessee had not included in the taxable turnover the freight charges paid in respect of the goods. The Assessee was under the bona fide belief that it was not so includable in the light of the same decisions of High Courts and the Supreme Court. In the light of a later Supreme Court decision rendered on August 22, 1978, the Assessee filed a revised return in respect of an assessment year in question, 1974-75, before the assessing authority on 28th October, 1978 including the freight charges in the taxable turnover. The Assessee also deposited along with the revised returns the balance sales tax payable under the Act. The liability of the Assessee to pay the interest on the tax paid in respect of freight charges between the date on which it was payable along with the original return and the date of actual payment along with the revised returns came ''up for consideration. Sections 7(1) and (2) and 11B (a) and (b) of the Rajasthan Sales Tax Act, as it stood at the relevant time, was considered by the Supreme Court, which ran as follows:

Submission of returns.-(1) Every registered dealer, and such other dealer, as may be required to do so by the assessing authority, by notice served in the prescribed manner, shall furnish prescribed returns, for the prescribed periods, in the prescribed forms, in the prescribed manner and within the prescribed time to the assessing authority:

Provided that the assessing authority may extend the date for the submission of such returns by any dealer or class of dealers by a period not exceeding fifteen days in the aggregate.

(2) Every such return shall be accompanied by a treasury receipt or receipt of any bank authorised to receive money on behalf of the State Government, showing the deposit of the full amount of tax due on the basis of return in the Government treasury or bank concerned.

11B. Interest on failure to pay tax, fee or penalty. - (a) If the amount of any tax payable under Sub-sections (2) and (2A) of Section 7 is not paid within the period allowed, or

(b) If the amount specified in any notice of demand, whether for tax, fee, or penalty, is not paid within the period specified in such notice, or in the absence of such specification, within 30.days from the date of service of such notice, the dealer shall be liable to pay simple interest on such amount at one per cent per month from the day commencing after the end of the said period for a period of three months and at one and a half per cent per month thereafter during the time he continues to make default in the payments.

Construing the above provisions, the Court held thus in the majority decision:

We are concerned in this case with the liability of the Assessee to pay interest on the amount of tax which had remained unpaid. Tax, interest and penalty are three different concepts. Tax becomes payable by an Assessee by virtue of the charging provision in a taxing statute. Penalty ordinarily becomes payable when it is found that an Assessee has wilfully violated any of the provisions of the taxing statute. Interest is ordinarily claimed from an Assessee who has withheld payment of any tax payable by him and it is always calculated at the prescribed rate on the basis of the actual amount of tax with held and the extent of delay in paying it. It may not be wrong to say that such interest is compensatory in character and not penal." (We are not concerned herein with the other aspects decided in the said case).

The levy of interest u/s 23(3) of the Act again came up before a Bench of this Court in Joy Varghese Vs. State of Kerala and Others, . In the said case the Assessee failed to pay the tax on the basis of the return filed by him under Rule 18(1) of the Rules. The said rule provided for filing a return in Form No. 8, showing the total turnover and taxable turnover for the preceding year and the amounts by way of tax and or taxes collected during the year and still due on the taxable turnover. Rule 18(3) proceeded to say that along with the return in Form No. 8 the dealer shall submit a receipt from the Government Treasury for the full amount of tax or taxes due for the year on the basis of the return, failing which, the assessing authority was enabled to serve a notice of demand on the dealer in Form No. 14, when the dealer shall pay the demanded sum in the manner required. The Court construed Rule 18(1) and the other provisions and held that the dealer is required to make his own assessment and state the total taxable turnover as also the tax payable by him in the return, which is required to be submitted in Form No. 8, within the specified time. It was further held that if the dealer failed to submit evidence regarding payment as enjoined in Rule 18(3), an obligation is cast 9n the assessing authority under Rule 18(3) to serve a demand notice in Form No. 14 and the clear implication is that if the dealer complies with the terms iii the demand in Form No. 14, he shall not incur the liability to pay the penalty prescribed u/s 23(3) of the Act. The Division Bench held that it is clear that the failure to make payment, is that payment which is required to be made in accordance with the notice of demand contemplated under Sub-rule (3) of Rule 18 of the Rules, issued under Rule 14 and it is the failure on the part of the dealer to pay the amount in accordance with the demand in Form No. 14, that attracts liability to pay the penal interest u/s 23(3) of the Act.

Placing heavy reliance on the above said decision, it was argued by Assessee''s Counsel that the service of notice of demand is an essential pre-requisite for levy and collection of interest u/s 23(3) of the Act. Our attention was also invited to a decision of the Bombay High Court in Commissioner of Sales Tax v. Machinery Sales Service 77 S.T.C. 131, where the said Court has followed the. Kerala decision in Joy Varghese Vs. State of Kerala and Others, . The Bombay High Court dissented from a Bench decision of the Gujarat High Court in Motilal Joitaram Patel v. Sales Tax Officer 1975 Tax L.R. 1589.

With great respect to the learned Judges who rendered the decision in Joy Varghese Vs. State of Kerala and Others, , we are of the view, that the said decision does not lay down die law correctly. Our reasons therefore are as follows: According to the Division Bench, the provisions of Section 23(3) of the Act, read with Rule 18(1) and (3) of the Rules requires the dealer to make1 his "own assessment" and State the taxable turnover as also the tax payable by him in the return, which is required to be submitted in Form No, 8 within the specified time. The statutory provision also enjoined on the dealer to submit evidence regarding payment of tax in accordance with the return. Having stated that the statutory provisions required the dealer to make "his own" assessment (self assessment) and pay the tax so assessed, the Division Bench placed undue reliance on Form No. 14 to hold that the payment, s which is required, to be made, is only in accordance with notice of demand issued in Form No. 14 and it is only the failure on the part of the dealer to make payment in accordance with the demand in Form No. 14 that attracts the liability to pay penal interest u/s 23(3) of the Act. Section 23(3) itself provides for different contingencies, when, the penal interest is payable. The contingencies envisaged therein are distinct and different. One of the contingencies envisaged is that if the dealer fails to pay the tax assessed (his own assessment or self assessment) that itself will attract the liability to pay the penal interest. The section also provides for other contingencies, including the non-payment of tax within the time specified therefor in the notice of demand issued. With great respect, the Division Bench ignored the first limb of section 23(3), namely that "if the tax assessed", thereby conveying that if the dealer as per his own assessment (self assessment) did not pay the tax as enjoined in the Rules, i.e. along with the returns filed, that itself makes him liable to pay the penal interest. In such a situation where by self assessment the tax becomes due on the filing of the return, a further notice of demand in Form No. 14 is irrelevant, or a surplus age. Failure to pay the tax as per the own assessment itself entails consequences provided by Section 23(1) read with Section 23(3) of the Act. Secondly, the Division Bench placed reliance on Rule 18 similar to Rule 21, which is applicable herein; but totally ignored Rule 31, which has decisive impact in the matter of mode of payment of penal interest u/s 23(3) of the Act (rule 31 is extracted in page 11 supra). Rule 31 was not noticed at all. According to us, Rule 31 totally dispenses with service of a notice of demand for payment of interest due u/s 23(3) of the Act. Thirdly, in Joy Varghese Vs. State of Kerala and Others, the attention of the Division Bench was not invited to the earlier two Bench decisions of this Court, rendered in Burmah Shell Oil Storage and Distributing Co. of India Ltd. Vs. The Sales Tax Officer and Others, and V. Haridas Vs. The Assistant Commissioner, Sales Tax (Assessment), Special and Others, . The earliest two Bench decisions have unambiguously laid down the law that the liability to pay the penal interest automatically clinches on the failure to pay "the tax assessed" within the time mentioned in the statement, and the liability to pay penal interest is automatic. The Officer is not even required to draw or pass a formal order, levying the interest payable u/s 23(3) of the Act. On a plain reading of Section 23(1) read with Section 23(3) of the Act, as it stood at the relevant time, it is evident that if "the tax assessed" is not paid by any dealer within the time specified therefor in any rule, the dealer shall pay penal interest. In this case the Assessees. By filing the return, they had made on their own assessment. The tax so assessed should have been paid by the dealer along with the returns "as enjoined in Rule 21(7) of the Rules. If there is any default and non-payment of the tax so assessed, as enjoined by the Rule, the liability to pay penal interest automatically arises. The dealer need not be served with any demand notice. Even without receipt of a notice, the dealer shall be liable to pay the penal interest. This, in short, is the effect of Section 23(1) read with Section 23(3) and Rule 21(7) read with Rule 31 of the Rules. Form No. 14D, as also Form No. 24, provided by the rules--to the extent they militate against the statutory provisions, Section 23(1) read with Section 23(3) of the Act, and rules. 21(7) and 31 of the Rules should bow down to the parent provisions. The implication sought to be made out, by a reference to Form No. 14D and Form No. 24, that the service of a notice of demand is a pre-requisite for levy and recovery of penal interest u/s 23(3) of the Act, is not acceptable. It will be contrary to Section 23(1) read with Section 23(3) of the Act and ''also Rules 21(7) and (10) and 31 of the Rules. Such statutory provisions should prevail in preference of the entries in1 the statutory Forms, Form Nos. 14, 14 D and 24 should be toned down in the light of Section 23(1) read with Section 23(3) of the Act and Rule 31 of the Rules. In this view of the matter, we hold, that the decision in Joy Varghese Vs. State of Kerala and Others, does not lay down the correct law on the subject.

The decision of the Bombay High Court, reported in Machinery Sales Service case 77 S.T.C. 131, at page 141, cited, with approval Joy Varghese Vs. State of Kerala and Others, is distinguishable. We should at once state that in the Bombay Act there was no provision similar to Rule 31 of the Rules. Moreover, Section 36(3) of the Bombay Act requires mens rea. The aspect of "self assessment" was not in issue,'' nor considered, therein. Moreover, u/s 38(4) of the Bombay Act, a notice, to be issued by the Commissioner, was mandatory. For the above reasons, the Bench decision of the Bombay High Court, reported in Machinery Sales Service case 77 S.T.C. 131 is distinguishable and will not apply to the facts of these cases. We overrule the decision in Joy Varghese Vs. State of Kerala and Others, .

We hold that the service of a notice of demand is not an essential pre-requisite for the levy and collection of penal interest u/s 23(1) read with Section 23(3) of the Kerala General Sales Tax Act, read with Rule 31 of the Kerala General Sales Tax Rules. In this view of the matter, the penal interest, sought to be collected in these cases, is valid and proper.

We dismiss O.P. No. 3501 of 1986 and W.A. No. 16 of 1988.