9911796707
TMI Blog1995 (2) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition equal to the actual suppression. Another item of addition relates to commission sales on behalf of unregistered dealers. The assessing authority has levied the penalty at one and half times of the tax due on the actual stock variation under section 12(3) of the Tamil Nadu General Sales Tax Act (the TNGST Act). On appeal, the Appellate Assistant Commissioner following the earlier decision of this Court in T.C. No. 1191 of 1979 held that the discrepancy in stock though suggestive of sales or purchase, omission warranting rejection of the accounts and for estimation cannot be held to establish wilful non-disclosure of a turnover. Since there was no wilful non-disclosure of turnover, in the present case, according to the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty. Again, the learned Additional Government Pleader (Taxes) submitted that since the appeal was filed by the assessee before the Tribunal, the revisional power under section 34 of the Act cannot be exercised by the Joint Commissioner. Under such circumstances, the only course open to the department is to file a petition under section 36(3)(a) of the Act. In order to support this line of argument, learned Additional Government Pleader (Taxes) relied upon the following two decisions in Bhavani Mills Limited v. State of Tamil Nadu [1994] 94 STC 120 (Mad.) and M. Chokkalingam v. State of Tamil Nadu [1994] 94 STC 127 (Mad.). 7.. On the other hand, none was present on behalf of the assessee. 8.. We have heard the learned Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. On reference this Court held that if the word enhance in section 36(3) of the Act is to apply, there must be something to be increased. Since the Appellate Assistant Commissioner had set aside the very order of penalty, there was no penalty to be increased. To increase the penalty already imposed is something different from restoring the penalty imposed by the original authority, which was set aside by the Appellate Assistant Commissioner. The subject-matter of the appeal before the Tribunal was the order of the Appellate Authority only and not the order of the original order passed by the assessing authority. Consequently, the contention for restoration of penalty would not come within the scope of section 36(3)(a)(i) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Assistant Commissioner is questioned in an appeal before the Tribunal, the orders passed by both the authorities are the subject-matters. In the appeal, the Tribunal can confirm the order passed by the Appellate Assistant Commissioner or modify the same or set aside the order passed by the Appellate Assistant Commissioner and restore the order passed by the assessing officer. Under section 34 of the Act, the Joint Commissioner cannot exercise the revisional power against the order passed by the Appellate Assistant Commissioner when an appeal has been filed before the Appellate Tribunal, by the assessee 10.. A plain reading of section 36(3)(a) of the Act would go to show that the State can file an enhancement petition or a petition for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cancelling the penalty remained unchallenged without any remedy before the Tribunal then that would create an anomalous situation which is not intended by the Legislature. It is significant to note that the word enhance occurring in section 36(3)(a)(i) would mean also to restore fully or partially as the case may be either the assessment or the penalty. This interpretation is supported by the words occurring within the brackets as stated in section 36(3)(a)(i) of the Act. The views expressed by us in the present decision are also in accordance with the views expressed by this Court in Bhavani Mills Limited v. State of Tamil Nadu [1994] 94 STC 120 and M. Chokkalingam v. State of Tamil Nadu [1994] 94 STC 127, referred to supra. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
