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TMI Blog2011 (6) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessment as falling under section 12, to sustain the penalty under section 12(3). Considering the fact that the levy of penalty does not satisfy the requirement of section 16(2) of the Tamil Nadu General Sales Tax Act, we have no hesitation in setting aside the order of the Tribunal. It is also relevant to note that the levy of penalty is discretionary and not an automatic concomitant of reassessment. As far as section 16(2) proceedings are concerned, in the absence of consideration of any materials therein as to the wilful non-disclosure of assessable turnover, we do not find any ground to affirm the view of the Tribunal. Appeal allowed of assessee. - Tax Case (Revision) No. 1045 of 2006 - - - Dated:- 10-6-2011 - CHITRA VENKA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was an inspection in the business place of the assessee. The inspection revealed that the assessee had effected purchases from unregistered dealers as well as inter-State purchases. Based on the results, the original assessment was sought to be revised under section 16 of the Tamil Nadu General Sales Tax Act, resulting in an addition of turnover under the head of sand and brick, apart from including freight charges in the total turnover. Although the reassessment order stated that penalty under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act would be levied separately, evidently, no such notice was issued. However, the order of reassessment revealed levy and penalty under section 12(3) of the Tamil Nadu General Sales Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Act and the deletion of penalty was done by the Appellate Assistant Commissioner holding that there was no wilful suppression, taking the view that the best judgment assessment attracted the penal provisions, the Tribunal set aside the order of the Appellate Assistant Commissioner and thereby restored the penalty levied. Aggrieved by the same, the present revision has been filed by the assessee. The learned counsel appearing for the appellant pointed out that going by the reassessment proceedings under section 16 of the Tamil Nadu General Sales Tax Act, unless the assessing officer records a definite finding as to the wilfulness on the suppression of turnover, penalty could not be sustained. He drew our attention to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 turnover that was wilfully not disclosed if the tax due on such turnover is not more than ten per cent of the tax paid as per the return; (b) One hundred per cent of the tax due on the turnover that was wilfully not disclosed if the tax due on such turnover is more than ten per cent but not more than fifty per cent of the tax paid as per the return; (c) One hundred and fifty per cent of the tax due on the assessable turnover that was wilfully not disclosed, if the tax due on such turnover is more than fifty per cent of the tax paid as per the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tamil Nadu General Sales Tax Act, in which event, the proper provision which one has to have recourse to for review of penalty is section 16. In the above circumstances, rightly the Appellate Assistant Commissioner held that in the absence of any definite finding on wilful suppression, the levy of penalty could not be sustained. A reading of the order of the Tribunal shows that it misdirected itself in treating the assessment as one under section 12(2) of the Tamil Nadu General Sales Tax Act. When it is not the case of the Department that the assessment was made under section 12(2) but one under section 16 as a case of reassessment, we fail to understand how the Tribunal considered the assessment as falling under section 12, to sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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