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TMI Blog2014 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and in the circumstances, the order of the Tribunal in affirming the deletion of penalty under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act is legally sustainable in view of the amendment of Section 12(3) under Act 25 of 1993?" 2. The present Tax Case Revision relates to the assessment year 1993-1994. In the original order of assessment, the Assessing Officer had found that the assessee had reported a total and taxable turnover of Rs.2,75,63,248/- and Rs.4,73,209/-, respectively, in the return in Form A1 filed for the year 1993-1994, under the Tamilnadu General Sales Tax Act, 1959. The books of accounts and the other records produced in support of the returns had been checked, with the following results: a) No day-to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le turnover of Rs.2,75,63,255/- and Rs.6,58,081/-, respectively, under the Tamilnadu General Sales Tax Act, 1959, to the best of judgement. There was a balance of tax due of Rs.7,396/- against the total due of Rs.26,323/-, as per the final assessment order. The difference between the tax assessed and tax paid worked out to 28%. Therefore, it was proposed to levy a penalty, under Section 12(3)(b)(iii) of the Tamilnadu General Sales Tax Act, 1959, as follows: Penalty due at 100% on the balance of Tax of Rs.7,396/- : Rs.7,396/- 5. The dealer was required to file the objections, if any, to the proposal with sufficient documentary evidence. The dealer had filed the objections, on 21.11.1997. In the said objections, the dealer had opposed the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty provisions under Section 12(3)(b) of the Tamilnadu General Sales Tax Act, 1959. 7. It had also been stated that the decision, reported in Birla Cement Works and another Vs. State of Rajasthan and another [94 STC 422 (SC)] did not have any relevance to the case on hand. As such, the Deputy Commercial Tax Officer, Coimbatore, had confirmed the proposal and the levy of penalty of Rs.7,396/-, under Section 12(3)(b)(iii) of the Tamilnadu General Sales Tax Act, 1959. Aggrieved by the revised order, dated 18.5.1998, the assessee had filed an appeal before the Additional Appellate Assistant Commissioner (CT), Coimbatore. 8. On considering the contentions raised on behalf of the assessee, as well as the Revenue, the Additional Appellate A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du Vs. Indian Metal and Metallurgical Corporation (41 STC 165) had not been followed by the authorities below. 11. In State of Tamil Nadu Vs. S.G.Jayaraj Nadar and Sons (28 STC 700), the Supreme Court had held as follows: "Where certain items which are not included in the turnover (in the returns) are discovered from the dealer's own account books and the assessing authority includes those items in the dealer's turnover, the assessment cannot be regarded as based on best judgment and penalty cannot be levied in respect of such items. It was also pointed out that where account books are accepted along with other records, there can be no grounds for making a best judgement assessment." 12. In The State of TamilNadu Vs. Indian Metal and Met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgement assessment and hence, the levy of penalty was set aside, relying on the decision, reported in State of Tamil Nadu Vs. S.G.Jayaraj Nadar and Sons (28 STC 700), wherein it was held that unless the assessment was made under best of judgement, no penalty under Section 9(2) of the Central Sales Tax Act, 1956, read with Section 12(3) of the Tamilnadu General Sales Tax Act, 1959, could be imposed. Aggrieved by the said order of the Tribunal, the revenue has filed the present Tax Case Revision before this Court. 15. The learned counsel appearing on behalf of the revenue had contended that the Tribunal had erred in deleting the penalty levied, under Section 12(3)(b) of the Tamilnadu General Sales Tax Act, 1959, on the ground that the book ..... X X X X Extracts X X X X X X X X Extracts X X X X
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