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2009 (10) TMI 875 - HC - VAT and Sales TaxLevy of penalty under section 16(2)(d) of the TNGST Act - imposition of penalty by a separate order - the assessment based on the book turnover - Held that - reliance was placed in the decision in the case of The Deputy Commissioner (C. T.), Coimbatore Versus VSR. Ramaswami Chettiar and Bros. 1975 (8) TMI 114 - MADRAS HIGH COURT , where it was held that under section 16(2) of the Act, the assessing authority has no jurisdiction to impose penalty by a separate and independent order - petition allowed - decided in favor of assessee.
Issues:
Challenge to penalty order under section 16(2)(d) of the Tamil Nadu General Sales Tax Act, 1959 for the assessment year 2005-06. Analysis: The petitioner challenged the penalty order dated July 30, 2009, under section 16(2)(d) of the Act, levied for the assessment year 2005-06. The original assessment was made on April 20, 2009, treating it as an escaped assessment. The petitioner had offered the turnover under the self-assessment scheme and claimed nil turnover. Subsequently, the assessing authority sought to fix the liability under section 7C of the Act for a specific turnover amount. Although no penalty order was made during the assessment, a notice proposing penalty under section 16(2)(d) was issued. The petitioner objected, citing that penalty could only be levied for wilful non-disclosure, which was not the case here. The petitioner relied on a previous court decision stating that there could be no separate penalty order under section 16(2) of the Act. However, the respondent confirmed the penalty proposal on the grounds that the decision cited by the petitioner was passed before the insertion of section 12C of the Act. The court noted that as per the decision in Deputy Commissioner (C.T.), Coimbatore v. V.S.R. Ramaswami Chettiar and Bros., the assessing authority had no jurisdiction to impose penalty through a separate order under section 16(2) of the Act. The court emphasized that the introduction of a new section, such as section 12C, did not affect the applicability of section 16(2) of the Act. Therefore, the officer's view that the introduction of section 12C would render section 16(2) irrelevant was unfounded. Considering the legal precedent and the lack of jurisdiction to levy a separate penalty under section 16(2) of the Act, the court set aside the penalty order. The court allowed the writ petition, stating that the penalty order was through an independent order under section 16(2) of the Act. Consequently, the writ petition was allowed, with no costs incurred, and the related miscellaneous petition was closed.
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