9911796707
TMI Blog2017 (4) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2.1. To be noted, the assessment order was passed on 31.07.2013. 3. In order to adjudicate upon the issue raised in the captioned writ petition, the following facts are required to be noticed : 3.1. The petitioner, who is a dealer in finished leather and is registered under the Tamil Nadu Value Added Tax Act, 2006 (in short the 2006 Act), and the Central Sales Tax Act, 1956, had made declaration of taxable turnover in the sum of Rs. 6,54,449/-, in respect of Assessment Year (AY) 2008-2009. 3.2. The petitioner, accordingly, based on self-assessment, paid tax in the sum of Rs. 26,178/-. 3.3. An order under Section 22(2) of the 2006 Act was passed on 31.05.2010. 3.4. It appears that vide notice dated 18.02.2011, the petitioner was call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,17,205/-. 4.2. In response to the said notice, the petitioner addressed a communication dated 09.07.2013, wherein, it was indicated that tax in the sum of Rs. 32,165/- had been paid in response to the earlier notice dated 18.02.2011. 4.3. The respondent, however, proceeded to pass a revised assessment order dated 31.07.2013, whereby, he added the escaped taxable turnover in the sum of Rs. 6,17,205/- to the taxable turnover in the sum of Rs. 6,54,449/-, which stood already determined. 4.4. Resultantly, the total taxable turnover was re-fixed and pegged at Rs. 12,71,654/-. In respect of the aforesaid re-determined taxable turnover, tax was fixed at the rate of 4 %. Consequently, tax due was calculated and pegged at Rs. 50,866/-. 4.5. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, which was taken note of in the order revising tax, penalty imposed is an order, notwithstanding the fact that this aspect did not form part of the revised assessment order. 8.1. In order to appreciate the said submission, learned counsel submits, that the provision of Section 27(3) of the 2006 Act, would have to be noted. 8.2. Accordingly, the said provision is extracted hereinbelow : " ..... 27. Assessment of escaped turnover and wrong availment of input tax credit - (1) ..... (2) ..... (3) In making an assessment under clause (a) of sub-section (1), the assessing authority may, if it is satisfied that the escape from the assessment is due to wilful non-disclosure of assessable turnover by the dealer, direct the dealer, to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) one hundred per cent of the tax due on the turnover that was willfully 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 willfully not disclosed, if the tax due on such turnover is more than fifty per cent of the tax paid as per the return; (d) one hundred and fifty per cent of the tax due on the assessable turnover that was willfully not disclosed in the case of self-assessment referred to in sub-section (1) of section 12. Provided that no penalty under this sub-section shall be imposed unless the dealer effected has had a reasonable opportunity of showing cause ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to argue the case in the absence of the respondent brought to our notice Section 31 relating to the appeal to the Appellate Assistant Commissioner where, while Section 12 is referred to without any reference to the sub-sections in that section, subsections (1) and (2) of section .16 is specifically referred to. It was so mentioned because two separate orders were contemplated under Section 16(1) and (2). On the other hand, only a consolidated order was expected to be made in Section 12 and, therefore, Section 12 is referred to without any reference to the sub-sections therein. We are unable to accept this argument of the learned counsel also. Section 16 has two more sub-sections [subsections (3) and (4)], which do not contemplate makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has no jurisdiction to impose penalty by a separate and independent order. Even if a statute has brought in a new section by way of section 12C, given the fact that section 16(2) of the Act remains as it is, the view of the officer that by introduction of 12C, section 16(2) will lose its validity, hence, the decision has no relevance, cannot be accepted by any standards of reasoning. In the circumstances, even though the writ petition is as against the penalty order, I have not hesitation in setting aside the order of the respondent, having regard to the law declared by this Court in the case of Deputy Commissioner (C.T.), Coimbatore V. V.S.R. Ramaswami Chettiar and Bros. reported in [1976] 38 STC 382, and on the admitted fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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