2014 (9) TMI 896 - HC - VAT and Sales Tax

Levy of penalty under Section 27 (3) of the Tamil Nadu Value Added Tax Act - Violation of Section 27(1)(a) - Held that - there is no return of assessment under Section 22 (2) of the Act by the assessee. Further, as is evident from Section 27 (1) (a) and (3) of the Act, there is no escaped turnover with regard to any assessment, as no return has been filed by the assessee under Section 22 (2). In any event, the inspection was done in the middle of the assessment year and, therefore, there being no assessment as contemplated under Section 22 (2), the said act of the assessee will not fall under the case of escaped turnover as has been rightly held by the Tribunal. The Tribunal has given a detailed analysis and arrived at the reasoning as above and we find no ground to interfere with the said decision of the Tribunal. - There is no question of law, much less substantial question of law arising for consideration in this revision - Decided against Revenue.

Summary

Issues:
1. Revision filed against order of Tribunal declining to interfere with penalty levy under Section 27 (3) of Tamil Nadu Value Added Tax Act.
2. Interpretation of provisions of Section 27 (1) (a) and Section 27 (3) of the Act.
3. Assessment without original assessment order under Section 22 (2) of the Act.
4. Whether penalty under Section 27 (3) is sustainable.

Analysis:

1. The revision was filed challenging the Tribunal's decision not to interfere with the penalty imposed under Section 27 (3) of the Tamil Nadu Value Added Tax Act. The Department contended that the assessee willfully did not disclose assessable turnover, justifying the penalty. The Tribunal found that there was no original assessment order passed under Section 22 (2) of the Act, which led to the conclusion that there was no escapement of assessment. As a result, the Tribunal held in favor of the assessee, stating that the penalty under Section 27 (3) was not sustainable.

2. Section 27 (1) (a) and Section 27 (3) of the Act were crucial in this case. Section 27 (1) (a) allows the assessing authority to determine and assess the turnover that has escaped assessment if the dealer willfully did not disclose assessable turnover. Section 27 (3) provides for the imposition of a penalty if the escape from assessment is due to willful non-disclosure. The penalty amount varies based on the percentage of tax due on the undisclosed turnover.

3. The issue of assessment without an original assessment order under Section 22 (2) of the Act was central to the case. The Tribunal noted that there was no original assessment order specifying the acceptance of returns or estimating escaped turnover. Without an original assessment, the Tribunal concluded that the invocation of Section 27 (1) (a) and subsequently Section 27 (3) was not justified. The absence of an original assessment precluded the imposition of penalties under the relevant sections.

4. The sustainability of the penalty under Section 27 (3) was a key point of contention. The Court found that since there was no return filed by the assessee under Section 22 (2) and no assessment conducted as per the Act, there was no basis for considering the act of the assessee as escaped turnover. The Tribunal's decision not to interfere with the penalty levy was upheld, and the revision was dismissed for lack of any substantial question of law.

In conclusion, the judgment analyzed the provisions of the Act, the absence of an original assessment order, and the justification for the penalty under Section 27 (3). The Tribunal's decision was upheld, emphasizing the importance of proper assessment procedures and the lack of grounds for interference in the case.