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TMI Blog2018 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench of this court held that the order of the Tribunal to the extent it upholds levy of penalty for these years namely, 1987-88, 1988-89, 1989-90, 1990-91, 1991-92 and 1992-93 is set aside. The assessing authorities shall now hear the assessee with regard to the question of penalty in relation to assessment for these years and thereafter proceed to make appropriate orders - revision dismissed. - Tax Case ( Revision ) No. 64 of 2017 - - - Dated:- 8-1-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Petitioner : Mrs. V. Haribabu, AGP ( Taxes ) ORDER ( Made by S. Manikumar, J. ) Tax Case Revision has been filed under Section 38(1) of the TNGST Act, 1959, to revise the order of the Sales Tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional sales tax at 3% instead of at 2.5%. In the same assessment order, the assessing authority levied penalty of ₹ 1,09,30,748/- under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959. 3. Aggrieved by this, the assessee filed an appeal before the Appellate Deputy Commissioner (CT) now re-designated as Joint Commissioner (CT), Chennai, who partly remanded and partly dismissed the case, by observing that the sum of ₹ 8,19,64,021/- ought not to have been included in the taxable turnover for the purpose of computation of additional sales tax. With regard to the penalty, the Appellate Deputy Commissioner, as the Joint Commissioner, while holding the view that no penalty is leviable, remanded the same to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to submit return or for the delayed submission of return on the part of the assessees which admittedly is nobody's case as can be seen from the order of the assessing authority. Hence, we are of the view that there is no need or necessity for remanding the case for the purpose of recording a finding as to whether the assessees could be imposed penalty under some other provisions of the said Act. Hence, we hold that the order of the Appellate Deputy Commissioner in remanding the matter on the point of levy of penalty even after holding that penalty could not be imposed in this case under section 12(3)(b) of the Act is not correct and this point is answered accordingly. 30) In the result this appeal is partly remanded and par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, came into force with effect from 01.08.1996 cannot be applied retrospectively for the assessment year 1995-96 to determine the turnover to levy additional sales tax is, contrary to the settled principles of law. (ii) He further submitted that the Tribunal has failed to appreciate that the amendment made by introudction of explanation along with new Section 2(aa) of the TNAST Act, was only declaratory in character, in order to clarify the meaning or effect of such provision and that such acts are always held to be retrospective. (iii) He further added that the Tribunal erred to consider that the said amendment made can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted. 10. In respect of assessments which were properly made by way of best judgment assessment, and in which penalty has been levied, it was submitted that the authority has failed to consider the bona fides of the petitioner. It was submitted that the turnover had been disclosed in full, but a part of it had not been regarded as part of the taxable turnover by reason of bona fide belief that the assessee had entertained having regard to the earlier judgments of this Court, and therefore, penalty levied was wholly unwarranted. The levy of penalty without considering the bona fides of the petitioner cannot be sustained. 11. We, therefore, set aside the order of the Tribunal to the extent it upholds levy of penalty for these years ..... X X X X Extracts X X X X X X X X Extracts X X X X
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