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TMI Blog2002 (4) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, Tvl. S.P.G. Ramasamy Nadar and Sons, having place of business at 77/1, South Car Street, Virudunagar and deals in cardamom, chillies, etc. 3. The Commercial Tax Officer-III, Virudunagar, the assessing authority, in his order dated March 30, 1992, determined the last purchase turnover of cardamom for Rs. 19,96,006 as taxable turnover at three per cent. Subsequently, the successor, in a revisional order dated November 29, 1994, imposed penalty under sections 12(5)(iii) and 22(2) of the TNGST Act for Rs. 1,27,875 and Rs. 3,441 respectively after due consideration of the objections filed by the appellant. The dispute brought before the first appellate authority is the levy of penalty under sections 12(5)(iii) and 22(2) is unlawful and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 29, 1990, changing the point of levy at the "last purchase" in the State, with effect from April 1, 1990, and the appellant bona fide, filed their returns disclosing local sales of cardamom as per law existed prior to April 1, 1990, that after became aware that cardamom during the year 1990-91 was assessable at the point of "last purchase", the appellant voluntarily filed a statement of last purchase of cardamom disclosing a turnover of Rs. 18,73,620.61 before the assessing authority at the time of check of accounts and prior to the completion of assessment for the year 1990-91. The learned counsel for the appellant added that the assessing authority after due verification of accounts and several decisions brought to his notice ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. M. Venkateswaran, Senior Standing Counsel (Taxes) representing the Revenue; the one and only question that arises for consideration in this T.C. (A) is as to: "Whether the order of the Joint Commissioner SMR on the facts and circumstances of the case restoring the order of the assessing authority imposing the penalty under section 12(5)(iii) for refraction or violation of provisions under section 12(4)(iii) (as they stood then) of the Act, during the year 1990-91 is sustainable in law?" 10.. We considered the rival contentions and the records placed before us carefully. Section 12(4) and 12(5) of Act as they stood then read as follows: "(4) Notwithstanding anything contained in sub-sections (1), (2) and (3), the assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be incorrect or incomplete, are inconsistent with the entries found in the accounts which are accepted as correct. Thus sub-section (4) of section 12 covers a difficult situation and is intended to apply to a case where there is discrepancy between the returns submitted, which are found to be incorrect or incomplete and the entries made in the books of account, which are found to be correct. 11.. In the instant case, the original assessment was made on March 30, 1991; subsequently a revisional order imposing the penalty under section 12(5)(iii) and section 22(2) was issued by the succeeding assessing authority on November 29, 1994. 12. The revisional authority (Joint Commissioner, SMR) concur with the lower authorities that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Pradesh Act. We may also notice in this connection that, in several cases, this Court has taken the view that where an assessee files a revised return and pays the tax on such revised return, before the assessment is completed, penalty cannot be levied under section 12(5) of the Act. In this connection, reference may be made to the recent judgment of this Court in Bhavani Mills Ltd. v. State of Tamil Nadu [T.C. (R) No. 1297 of 1982 dated October 3, 1991], Kalyani Agencies v. State of Tamil Nadu (1984) 10 STL 151 (Mad.) and State of Tamil Nadu v. P.S. Srinivasa Iyengar Sons [1993] 89 STC 349 (Mad.); [1989] 10 SISTC 155 (Mad.) (T.C. No. 77 of 1989 dated April 19, 1989). The exceptions, we have noticed where the assessee can escape the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide, deliberateness, wilfulness will not stand before us but the word "incomplete" return. From the order of the assessment dated March 30, 1992, we find that the assessing authority determined the turnover only based on the accounts. Even if we accept that the statement filed at the time of final assessment as "revised returns", we are unable to accept it as a "complete return" since there was no proof of payment of tax due accompanied the return. 19.. Therefore, we have no hesitation to hold that the original assessment dated March 30, 1992 made by the assessing authority squarely falls under section 12(4)(iii) of the Act as it stood then and the order of the Joint Commissioner (SMR) in confirming the penalty does not warrant any inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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