9911796707
TMI Blog2018 (4) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... loss accounts. Hence, the Assessing Officer assessed the dealer on total and taxable turnover of Rs. 25,52,134/- and Rs. 20,80,134/- respectively, for the year 1996-97, under Tamil Nadu General Sales Tax Act, 1959, and also levied penalty of Rs. 1,32,252/- under Section 12(3) of the Act. 3. Aggrieved over the assessment, the dealer, filed an appeal before the Appellate Assistant Commissioner (CT), Kancheepuram, disputing the turnover of Rs. 9,79,729/- at 11 % and levy of penalty of Rs. 1,32,252/-, under Section 12(3)(b) of the Act. The Appellate Assistant Commissioner, vide order, dated 15.03.2001, dismissed the appeal, as follows: "5. The point for determination in this appeal is whether the assessment made is proper ? 6. The learned Authorised Representative for the appellant has appeared and reiterated the contentions put forth in the grounds of appeal and has produced a copy of trading account. The Departmental Representative on the other hand argued supporting the assessment and has filed written arguments. 7. The arguments advanced by both representatives were heard carefully and perused the records. I find that the appellants are manufacturer of welding electrodes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d." 4. Being aggrieved, the dealer has preferred T.A.No.718 of 2001, disputing the sustaining of penalty of Rs. 1,32,252/-, under Section 12 (3) (b) of the Tamil Nadu General Sales Tax Act, 1959, for the year 1996 97, under the Tamil Nadu General Sales Tax Act, 1959, against the order of the Appellate Assistant Commissioner (CT) Kancheepuram, in A.P.No.126 of 1999, dated 15.03.2001. Vide Order, dated 24.01.2002, the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai, modified the order of the Appellate Assistant Commissioner (CT) Kancheepuram, as hereunder: "7. We have examined the contentions of both sides and perused the connected records. 8. The main dispute in this appeal is what is the turnover of Rs. 9,81,132.77 represents. According to the learned Authorised Representative there is a purchase of Rs. 9,81,132.77 which has been disposed as second sales for Rs. 9,81,132.77. The same purchase turnover is found in the sales turnover also. But in the monthly returns only a turnover of Rs. 11,00,405/- and Rs. 6,56,125 under Central Sales Tax were declared. The appellant had never claimed exemption on this Rs. 9,81,132.77. If the entire purchases effected in the disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Assistant Commissioner has made an observation but for the critical check by the Assessing Officer this omission would not have been found. But we find that all the figures are available in the books of accounts. The estimation of sales turnover was done only based on the book purchase turnover. There is no purchase or sales omission found out by the Assessing Officer. As correctly contended by the learned Authorised Representative penalty is not leviable when the figures are culled out from the books of accounts as per the Supreme Court decision in 28 STC 700. Further, the following legal decisions were also cited by the learned Authorised Representative. 25 STC 211 SC Hindustan Steel Ltd., 28 STC 700 SC State of Madras V Jayaraj Nadar 42 STC 121 Kathiresan Yarn Stores. 45 STC 197 SC Cement Marketing Co of India 96 STC 597 Madras v Sivasubramaniam 111 STC 800 Karnataka Varalakshmi Enterprises. W.P.Nos.2180 to 2182/2000, 8367 to 8371 of 2000 etc., dt.1.10.2001 of Madras High Court in the case of Appollo Saline Pharmaceuticals Pvt Ltd, Tirunelveli etc. In view of the above decisions, we feel that penalty is not leviable under Section 12(3)(b) since the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., Vs. Commercial Tax Officer (FAC) and Others, reported in {(2002) 125 STC 505}, considering a decision of the Hon'ble Supreme Court in State of Madras Vs. Jayaraj Nadar & Sons {(1971) 28 STC 700, at paras 5 to 7, held as follows:- "5. The Supreme Court in the case of State of Madras Vs. Jayaraj Nadar & Sons {(1971) 28 STC 700, at page 701, after extracting Section 12 (2) of the Tamil Nadu General Sales Tax Act, 1959, which remains in the same form even now, observed thus:- "The question is whether penalty can be levied while making the assessment under sub-Section (2) of the above Section merely because an incorrect return has been filed. The High Court was of the view that it is only if the assessment has to be made to the best of the judgment of the assessing authority that penalty can be levied. It seems to us that the High Court came to the correct conclusion because sub-sections (2) and (3) have to be read together. Sub-Section (2) empowers the assessing authority to assess the dealer to the best of its judgment in two events: (i). if no return has been submitted by the dealer under sub-section (1) within the prescribed period, and (ii). If the return submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: "8. .......Thus when the turnover assessed under the assessment order is drawn from the books of accounts itself, and there being no reference to any specific concealment of the turnover in the accounts, the question of invoking section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 would not arise. The Explanation to section 12(3)(b) of the Act specifies the turnover which merited to be excluded for the purpose of levy of penalty, one such being the turnover representing addition related to book turnover itself. Thus, even while calculating the turnover for the purpose of levy of penalty, the turnover, which are already available in the books of accounts are to be excluded and only those turnover which are estimated having reference to a specific concealment alone, the purpose of addition, invite the penal provisions under the Tamil Nadu General Sales Tax Act, 1959. In the decision reported in [2002] 125 STC 505 (Mad) (Appollo Saline Pharmaceuticals (P) Limited v. Commercial Tax Officer (FAC)) this court pointed out that when the assessment is based on the accounts turnover, the question of levy of penalty does not arise." 9. In the circumstances, applying ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
