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TMI Blog2010 (2) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... not find any error of law or illegality in the order passed by the Tribunal warranting interference. The finding given by the Tribunal is based on valid materials and evidence and it is a question of fact. It is not a perverse order. Therefore, we confirm the order of the Tribunal and answer the question of law in favour of the assessee and as against the Revenue. - 223 of 2006 - - - Dated:- 4-2-2010 - MURUGESAN D. AND JANARTHANA RAJA P.P.S. , JJ. ORDER:- The order of the court was made by P. P. S. JANARTHANA RAJA J. This tax case revision is transferred from the Special Tribunal after its abolition as per section 3 of the Special Tribunal Repealing Act. The above revision is filed against the order of the Tamil Nadu S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful non-disclosure of the turnover relating to the sale of REP licence and allowed the appeal, deleting the penalty. Hence, the present revision. The learned Special Government Pleader appearing for the Revenue submitted that the Tribunal is wrong in deleting the penalty under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959. He further submitted that the Tribunal failed to note that the assessing authority resorted to revision of assessment in view of the fact that the dealers failed to disclose the turnover relating to REP licence. Therefore, the assessing officer has rightly levied penalty under section 16(2) of the Act for wilful non-disclosure of taxable turnover. He also submitted that the Tribunal ought to have seen tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the case of Vikas Sales Corp. reported in [1996] 102 STC 106. The Supreme Court delivered the judgment only on May 1, 1996. According to the assessing officer, the assessee ought to have filed revised return. Because of the failure on the part of the assessee in not filing the return, the assessing officer levied penalty under section 16(2) of the Act. It is not in dispute that the assessee reported the turnover relating to REP licence. It is also to be noted that during the relevant assessment year, this court in the case of P. S. Apparels v. Deputy Commercial Tax Officer reported in [1994] 94 STC 139, has held that the sale of REP licence subject to tax. The said judgment has not reached finality. Hence the matter was taken to Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the return; (d) one hundred and fifty per cent of the tax due on the assessable turnover that was wilfully not disclosed, in the case of selfassessment referred to in sub-section (1) of section 12: Provided that no penalty under this sub-section shall be imposed unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. From a reading of the above, it is clear that for the purpose of levying penalty under section 16(2), there should be wilful non-disclosure of the turnover in the return. In the present case, the turnover was shown, but under the bona fide belief, the assessee claimed exemption. Therefore, the condition precedent for invoking the provision under section 16(2) has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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