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2004 (2) TMI 660

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..... o a notice and their paying the tax due ultimately after the final assessment order, would not come to their rescue. As rightly pointed out by the fourth respondent that even if the statement filed at the time of final assessment is treated as revised returns , the same cannot be accepted as a complete return since there was no proof of payment of tax due accompanied the return. The petitioners, obviously, submitted incorrect and incomplete returns with a view to postpone the tax legitimately due to the Government. We find that both the third and fourth respondents have considered each and every circumstance of the case and came to the conclusion that the failure to disclose the details in the monthly returns can only be treated as wilful a .....

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..... f cardamom at Rs. 18,73,621 in the form of a statement before the assessing officer. Tax was paid by the petitioners only after the final assessment order was passed. A notice was issued to the petitioners calling for objections as to why a penalty at 150 per cent on the tax due, surcharge at 10 per cent and additional tax, should not be levied. The petitioner submitted objections, stating that since they have submitted a statement regarding the correct and complete particulars of the purchase turnover of cardamom, before checking the accounts, no penalty is leviable. They also objected for levy of proposed penalty under section 12(2) of the TNGST Act, 1959 to the tune of Rs. 3,441. In respect of the cardamom sold to the local consumers als .....

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..... complete returns. The fourth respondent also held that even if the statement filed at the time of final assessment is accepted as "revised returns", it cannot be a "complete return" since there was no proof of payment of tax due accompanied the return. 6.. The prayer that is sought for in this writ petition is for the issuance of a writ of certiorari to call for the records on the file of the fourth respondent in T.C.(A) No. 79 of 1999 and to quash the order dated 5-4-2002, confirming the order of the third respondent in Ref. No. F2/63641/95-SMR. No. 288 of 1996, dated May 28, 1998. 7.. The petitioners failed to report the last purchase turnover of cardamom in the monthly returns and naturally the tax due thereon was also not paid. They dis .....

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..... de belief that his return was in accordance with law. 10.. Coming to the present case, the petitioners claim to be reputed and established dealers in cardamom, chillies, etc., for nearly four decades. They failed to disclose the details in the monthly returns. It is rather difficult to accept that such mistakes had crept in bona fide, and the intention was obvious, viz., to postpone the tax legitimately due to the Government or to defraud the revenue. Their merely filing a statement in response to a notice and their paying the tax due ultimately after the final assessment order, would not come to their rescue. As rightly pointed out by the fourth respondent that even if the statement filed at the time of final assessment is treated as "revi .....

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..... . That being so, the levy of penalty on additional tax has to be held as illegal. 13.. The next question is as to whether levy of penalty on the surcharge is legal and proper? Learned counsel, appearing for the Revenue, would draw the attention of this Court to a ruling of this Court reported in [1985] 58 STC 143 [Deputy Commissioner (C.T.) v. M. Murugesan and Bros.] and submit that the Tamil Nadu Sales Tax (Surcharge) Act (24 of 1971) would clearly stipulate that all the provisions of the Tamil Nadu Sales Tax Act, which apply to the levy of sales tax, will be applicable to levy of surcharge and that being so, penalty can be levied on surcharge as well. However, learned counsel, appearing for the petitioner, would draw the attention of this .....

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