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TMI Blog2011 (7) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the goods being tax paid or taxable has escaped the attention of the assessing authority altogether. Unfortunately, learned Tax Board also has not addressed itself to this aspect of the matter. Thus the imposition of penalty on the petitioner-assessee is found to be unjust and illegal. Consequently, this revision petition is allowed arid the impugned order of penalty passed by the learned authorities below including that of learned Tax Board dated December 31, 2007 is set aside. - S.B. Civil Sales Tax Revision Petition No. 111 of 2009 - - - Dated:- 1-7-2011 - DR. VINEET KOTHARI J. Dinesh Mehta for the petitioner Ankur Mathur for Vinit Mathur for the respondent JUDGMENT By this revision petition, the petitioner- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced below, urged that the only basis for imposing penalty under section 77(8) of the Act is the possession of the goods not accounted for by the assessee irrespective of the category, whether sales tax paid goods or taxable goods, therefore, penalty provision gets attracted in the present case, since excess stock was found on the basis of deduction of normal G. P. rate from the normal sale value, which is also a recognized method of determining the stock of the assessee. He submitted that the assessing authority cannot be faulted in imposing the said penalty. 77. Power of entry, inspection and seizure of accounts and goods:- (1) to (7) ... (8) The assessing authority or the officer referred to in sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But, if the goods for which allegedly excess stock not accounted for in the books of accounts is found, even assuming for the, argument sake, validly on the basis of deduction of G. P. rate from the sale value, still such penalty cannot be imposed because the goods in question are admittedly of sales tax paid category in the hands of the present assessee and not taxable category. The range of penalty to be determined on the basis of two factors would simply be not available, if one of the factors is zero, namely, no tax liability is attracted in the sales tax paid goods in the hands of the assessee. In the present case, obviously the question of, imposing penalty thirty per cent of the value of the goods would not arise as the lesser factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per sale value minus G. P. rate and stock reflected in the regular books of accounts maintained by the assessee, the assessing authority straightway computed the five times of the tax rate as penalty under section 77(8) and this aspect of the matter as to whether the goods being tax paid or taxable has escaped the attention of the assessing authority altogether. Unfortunately, learned Tax Board also has not addressed itself to this aspect of the matter. In these circumstances, the imposition of penalty on the petitioner-assessee is found to be unjust and illegal. Consequently, this revision petition is allowed arid the impugned order of penalty passed by the learned authorities below including that of learned Tax Board dated December 31, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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