2013 (1) TMI 704

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..... f false returns concluded the matter. Thus, the order of penalty passed by the assessing authority is patently in violation of provisions of section 43(1) of the Act and cannot be sustained. Appeal allowed. Matter remitted back to the assessing officer, i.e., respondent No. 1, the Commercial Tax Officer, Circle-I, Satna for a fresh adjudication after extending/giving proper opportunity to the petitioner.
KRISHN KUMAR LAHOTI AND SIDDIQUI M.A., JJ. For the Appellant : Sanjay Mishra For the Respondents : Rahul Jain, Deputy Advocate-General ORDER :- Heard finally. This writ petition under article 226 of the Constitution of India has been filed to quash order of penalty ₹ 2,03,830 imposed by assessing officer dated October 4, 200 .....

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..... ppellate authority, hence the penalty imposed against the petitioner be set aside or be kept in abeyance till the appeal is decided by the Commercial Tax Appellate Board, Bhopal. However, the revisional authority had not considered the objection and dismissed the revision petition on June 25, 2005 vide order annexure P7. This order is under challenge on the ground that during pendency of appeal, such order could not have been framed because it was not found that the petitioner had deliberately concealed its turnover. The petitioner has placed reliance on the judgment of S.R. Kalani & Co. v. C.L. Sharma [1965] 16 STC 756 (MP); [2004] 3 STJ 282 (MP), in which it has been held thus: ". . . Penalty under section 43(1) can be imposed on a .....

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..... s, the order of penalty passed by the assessing authority is patently in violation of provisions of section 43(1) of the Act and cannot be sustained. As the appeal filed by the petitioner against the assessment order is till pending, it would be proper to stay further proceedings under section 43(1) of the Act till the disposal of that appeal." The learned counsel for the respondents could not point out that by order dated October 4, 2004 or order dated May 25, 2006 the authorities, were satisfied that the petitioner had deliberately concealed his turnover or furnished a false return. In the light of the law laid down in S.R. Kalani [1965] 16 STC 756 (MP); [2004] 3 STJ 282 (MP), the order dated October 4, 2004 passed by the assessin .....

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