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TMI Blog1984 (7) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... ain slips had been recovered and it was found that slip No. 7 revealed sale of pig-iron of a quantity of 24.185 tonnes for the value of Rs. 15,357.48. After the assessment order was passed, the succeeding officer found in the assessment order a suppression of Rs. 15,357.48 and therefore held that a levy of penalty is called for in this case. He took the probable suppressions to be Rs. 71,527.96 and levied a penalty of Rs. 679.00. The assessee preferred an appeal and the appeal was partly allowed, reducing the penalty to an amount equivalent to the tax on the suppressed turnover of Rs. 15,357.48. Not satisfied with the relief granted by the appellate authority, the assessee went before the Tribunal, contending that the levy of penalty is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 12 which was in force at the relevant period before the amendment in 1979. Section 12(3) as it stood then read as follows: "(3) In addition to the tax assessed under sub-section (2), the assessing authority may, in the same order of assessment passed under sub-section (2), or by a separate order, direct the dealer to pay a penalty not exceeding one and a half times the amount of tax due on the turnover that was not wilfully disclosed by the dealer in his return or in the case of wilful failure to submit a return, a penalty not exceeding one and a half times the tax assessed, as the case may be: Provided that no penalty under this sub-section shall be imposed unless the dealer affected has had a reasonable opportunity of showing caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of penalty could be passed only by the authority who made the assessment and not by the succeeding officer. The fact that the statute itself gives a five year period for passing an order levying the penalty would indicate that the assessing authority having jurisdiction in relation to the assessee can pass an order levying penalty. It may be that the original authority who made the assessment inadvertently omitted to levy a penalty even after finding that there was suppression. In such cases, either the original authority who made the assessment or the succeeding authority could pass the order levying penalty, provided it is done within a five year period referred to in the aforesaid proviso. The prescription of a five year period indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot relate to the assessee's business but it related to the business of another dealer who carried on business in the adjoining premises. The Tribunal also has referred to the fact that though the assessee could not canvass the question as to whether the slip in question related to its business or not, the appeal filed before the Appellate Assistant Commissioner was dismissed as barred by time. Therefore the merits of the assessment could not be canvassed by the assessee. Having regard to the finding of the Tribunal that the slip recovered from the assessee relates to the transaction of the sister concern, the suppression found by the succeeding authority has no basis. Even though the assessment made on the assessee has become final and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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