9911796707
TMI Blog2010 (2) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tribunal is right in holding that penalty is leviable under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 for the assessment year 1994-95 since the taxability or otherwise of sale of REP licence was ultimately settled by the Supreme Court only in the year Vikas Sales Corporation v. Commissioner of Commercial Taxes [1996] 102 STC 106?" The assessee is a dealer in hides and skins at No. 2, Hunters Road, Choolai, Chennai 112. The relevant assessment year is 1994-95. The assessee was originally assessed to tax on a total and taxable turnover of Rs. 1,89,54,948 and nil, respectively. Later the assessment records were scrutinized and the assessing officer found the turnover relating to sale of advance REP licence to the tune of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Apparels v. Deputy Commercial Tax Officer reported in [1994] 94 STC 139 (Mad), in which the taxability of REP licence was settled and the same was affirmed by the Supreme Court in Vikas Sales Corporation v. Commissioner of Commercial Taxes [1996] 102 STC 106. Therefore the assessee ought to have disclosed the turnover relating to REP sales and the order passed by the Tribunal is not in accordance with law and the same has to be set aside. The learned counsel appearing for the respondent/assessee submitted that the Tribunal is correct in deleting the penalty levied on the turnover relating to REP licence. He further submitted that the issue was settled by the Supreme Court only on May 1, 1996 and hence no penalty is leviable. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the apex court. Hence no penalty is leviable till the Supreme Court's judgment. The assessee was under the bona fide belief and claimed exemption. Therefore, it cannot be said that it amounts to wilful non-disclosure of turnover, for the purpose of levying penalty under section 16(2) of the Act. Section 16(2) of the Act reads as follows: "16. (2) In making an assessment under clause (a) of sub-section (1), the assessing authority may, if it is satisfied that the escape from the assessment is due to wilful non-disclosure of assessable turnover by the dealer, direct the dealer, to pay, in addition to the tax assessed under clause (a) of sub-section (1), by way of penalty a sum which shall be- (a) fifty per cent of the tax due on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the order reads as under (page 64): "5. In so far as the merits of case, in levying penalty under section 16(2) of the Act, is concerned, it was represented that the turnover of Rs. 1,12,664 was assessed on the basis of book turnover. The assessed turnover was stated to be found in the books of accounts and the accounts were accepted by the Department. In such a case, the Appellate Assistant Commissioner pointed out that in view of the decision of the Supreme Court in State of Madras v. S.G. Jayaraj Nadar & Sons [1971] 28 STC 700 penalty is not exigible under section 16(2) of the Act. This situation was not disputed seriously. Therefore, on merits, penalty under section 16(2) of the Act is not exigible in the case of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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