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TMI Blog1986 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... books of the assessee. Exhibit No. 8 and exhibit No. 7 reflected concealment of sales tax. Apart from this, some other papers were also detected. The suppression of these details clearly reflected the concealment of sales tax made by the applicant. The question which arises is whether the penalty should be worked out on the basis of the actual concealment found or on the basis of the difference between the returned turnover and the assessed turnover. Learned counsel for the applicant referred to both unamended and the amended section. He urged that after the amendment of section 15-A(1)(c), which became effective from 1st March, 1973, the imposition of penalty could not be on the basis of the difference of assessed tax and the disclosed turnover. According to him, as per amended section, under section 15-A(1)(r)(ii) it can only be on the basis of the actual concealment found. He made emphasis on the word used "thereby" therein. The argument was that "thereby" only qualifies the preceding sub-clauses mentioned therein. The present case is a case of concealment covered by sub-clause (c) of the aforesaid section. To appreciate the controversy raised in the present case, unamend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters or documents; or ....................................... (1) issues or furnishes a false certificate or declaration by reason of which a tax on sale or purchase ceases to be leviable under this Act or the rules made thereunder; or (m) makes use of a prescribed form of declaration or certificate which has not been obtained by him or by his principal or agent in accordance with the provisions of this Act or the rules made thereunder; or ....................................... (r) otherwise acts in contravention of the provisions of this Act or the rules made thereunder, it may, after such inquiry, if any, as it may deem necessary, direct that such dealer or person shall pay, by way of penalty, in addition to the tax, if any, payable by him,- ....................................... (ii) in a case referred to in clause (c), clause (d), clause (h), clause (i), clause (m) a sum not less than fifty per cent, but not exceeding one and one half times, of the amount of tax which would thereby have been avoided." His argument is that now after the amendment since the aforesaid words were omitted, the word "avoided" used in clause (r)(ii) must be read as referred to therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s returned by such dealer had been accepted" were deliberately used. It clearly speaks about the concealment and deliberately furnishing of inaccurate particulars of the turnover. Thus in cases falling under clause (b) of the unamended section, the gross turnover is bound to be increased and so it was used there. Now after the amendment as I have said earlier, in sub-clauses referred to in clause (r)(ii) there are cases where gross turnover need not be changed. Therefore, elimination of the words was for a deliberate purpose. Now examining from another angle I find that there is no significant change between the unamended and amended section so far as clause (c) is concerned. The words in sub-clause (c) is now identical with the words used in sub-clause (b) earlier. In clause (r)(ii) except dropping of the words "if the turnover as required by the dealer has been accepted", for which I have already given reasons above and also now prescribing for the minimum penalty which was not there earlier, the rest of the provisions are the same. The word "avoided" was there even in the earlier sub-clauses. Avoided will apply to various sub-clauses. In the cases falling under sub-clause (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The relevant portion is quoted hereunder: "........ In our opinion the High Court was right in holding that the word 'avoided' does not mean 'evaded' and it has been used in the sense of escapement." Learned standing counsel relied on the cases, Narain Das Suraj Bhan v. Commissioner of Sales Tax, U.P., Lucknow [1968] 21 STC 104 (SC), Commissioner of Sales Tax, U.P. v. Diwari Lal Ganga Prasad [1977] 39 STC 517 (All.); 1977 UPTC 596 and Commissioner of Sales Tax, U.P., Lucknow v. Paras Ram Sons, Lucknow 1980 UPTC 969. In these cases also it was held that in relation to concealment of the turnover it would be between the tax assessed and the tax returned. Learned counsel for the applicant urged that these are cases of either prior to the amendment or are cases under the Indian Income-tax Act, 1922, and this principle would not be applicable to the amended law. I have already held above that there is no significant change between the earlier law and the amended law except the regrouping the various sub-clauses or adding to subclauses under the purview of penalty with prescription of minimum penalty. Except this, there is no other significant change brought about by the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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