2010 (2) TMI 1079 - HC - VAT and Sales Tax

Whether the Sales Tax Appellate Tribunal is right in holding that penalty is leviable under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 for the assessment year 1994-95 since the taxability or otherwise of sale of REP licence was ultimately settled by the Supreme Court only in the year Vikas Sales Corporation v. Commissioner of Commercial Taxes 1996 (5) TMI 363 - SUPREME COURT OF INDIA ? Held that - Levying of penalty by the assessing officer under section 16(2) of the Act is not justified. The Tribunal has correctly held that the levy of penalty is not justified and therefore deleted penalty. We do not find any error of law or illegality in the order passed by the Tribunal warranting interference. The finding given by the Tribunal is based on valid materials and evidence and it is a question of fact. It is not a perverse order. Therefore, we confirm the order of the Tribunal and answer the question of law in favour of the assessee and as against the Revenue.

Summary

Issues:
1. Interpretation of penalty under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 for wilful non-disclosure of assessable turnover.
2. Application of penalty in the case of turnover relating to sale of REP licence for the assessment year 1994-95.
3. Assessment of penalty by the assessing officer and its validity in the absence of wilful non-disclosure.

Analysis:
1. The primary issue in this case revolves around the interpretation of penalty under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 for wilful non-disclosure of assessable turnover. The contention arises from the assessing officer's decision to levy a penalty on the turnover relating to the sale of REP licence, which was initially not disclosed by the assessee. The Tribunal's role was crucial in determining whether the penalty was justifiable under the given circumstances.

2. Specifically, the application of penalty in the case of turnover relating to the sale of REP licence for the assessment year 1994-95 was a point of contention. The Supreme Court's judgment in Vikas Sales Corporation v. Commissioner of Commercial Taxes [1996] 102 STC 106 was cited as a pivotal factor in determining the taxability of REP licence sales. The timeline of events leading to the final settlement of the issue by the Supreme Court played a significant role in assessing the liability for penalty in this case.

3. The assessment of penalty by the assessing officer and its validity in the absence of wilful non-disclosure was a critical aspect of the dispute. The assessing officer's decision to levy a penalty under section 16(2) of the Act was challenged based on the grounds of bona fide belief and exemption claimed by the assessee. The argument centered around whether the non-disclosure of turnover was indeed wilful, considering the circumstances and legal precedents cited during the proceedings.

In conclusion, the High Court upheld the Tribunal's decision to delete the penalty levied on the turnover relating to the sale of REP licence for the assessment year 1994-95. The Court emphasized that the assessing officer's levy of penalty was not justified as the turnover was disclosed, and the assessee claimed exemption under a bona fide belief. Citing relevant legal precedents and the specific provisions of section 16(2) of the Act, the Court found no error of law in the Tribunal's decision and dismissed the appeal filed by the Revenue.