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TMI Blog2015 (4) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... of the dealer. 3. The brief facts of the case are as follows: The assessee/respondent are dealers in pipes and pipe fittings. For the assessment year 1991-92, the Assessing Officer had completed the assessment and subsequently, when the place of business was inspected by the Enforcement Wing Officials, it was noticed that the sale consideration was shown as a consolidated sum without showing the sales tax and surcharge collections separately and the taxable turnover was reported exclusive of sales tax and surcharge collections. On the basis of the report of the Enforcement Wing Officers, the Assessing Officer reopened the assessment and subjected to tax the element of sales tax and surcharge collections and wages paid. Consequently, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case and in the absence of any material evidences produced by the appellants concerned, we see no other alternative but to confirm the assessment so made by the Assessing Authority." 5. Insofar as the levy of penalty is concerned, the Tribunal concurred with the view of the Appellate Assistant Commissioner that there was no justification in penalising the assessee, as the turnover in question was based on assessee's books of accounts and there was no element of willful non-disclosure of turnover. Placing reliance on the decision reported in 91 STC 112 (P.Subba Reddy V. State of Tamil Nadu) and 104 STC 61 and 94 STC 120, the Tribunal held as follows: "25. With regard to the penalty, the learned Additional State Represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive the turnover for assessment from out of the assessee's own books of accounts and the very same turnover was available in the books even at the time of original assessment and any attribution of wilful nondisclosure of the turnovers from their getting taxed under the Act, shall not be possible. Hence, the penalisation created u/s. 16(2) of the TNGST Act is to be held as illegal. Thus, the learned Appellate Assistant Commissioner has set aside the penalty so levied relying on the case laws reported in 104 STC 61 (Madras) and 94 STC 120, wherein, it was held that where the assessed turnover was found in the assessee's books of accounts, penalty cannot be imposed u/s.16(2) of the TNGST Act. 27. The learned Appellate Assistant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessment year 1972-73, we are not expressing any opinion on this question because we propose to dispose of this tax revision case on the ground that no penalty has been imposed within the period of five years ending assessment year 1972-73". 28. Therefore under the given facts and circumstances of the case, the order passed by the first appellate authority in setting aside the penalty is found to be in order and hence it calls for no interference." 6. A reading of the order of the Tribunal reveals that, on facts, there is no dispute that there was no wilful non-disclosure, but the claim for deduction from the total turnover, viz., the component of sales tax collected, was negatived, as the assessee did not produce any material i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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