9911796707
TMI Blog2000 (8) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices relates to the purchase of matches, detergent powder and supari etc. The assessment was therefore revised on the information received from the Banks. The Assessing Officer also initiated penalty proceedings under Section 14(8) of the A.P. General Sales Tax Act (hereinafter referred to 'the Act') and levied penalty five times the tax due on account of suppressed turnover relating to the matches. Aggrieved by the same, the petitioner-dealer preferred appeal to the Appellate Deputy Commissioner. The Appellate Deputy Commissioner, after considering the material elaborately, confirmed the assessment as well as the penalty of five times the tax due. Further appeal was preferred to the Sales Tax Appellate Tribunal, which confirmed the order of the first appellate authority. Now the present revision relates only to the confirmation of the penalty at five times the tax by the appellate Tribunal. 3. The learned Counsel for the petitioner contended that the Appellate Tribunal did not consider the issue of leviability of penalty as well as the quantum that was contemplated under the provisions of Section 14(8) of the Act. It is contended that the Appellate Tribunal had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, after considering the material on record, gave a finding that the omission to disclose the turnover relating to matches was wilful and therefore the said findings, which is a finding of fact, would not be interfered with by this Court while exercising Revisional jurisdiction under Section 22 of the Act. The learned Counsel also contended that but for the inspection by the Commercial Tax Officer, the turnover relating to the matches would not have come to light and therefore the disclosure of the turnover relating to the matches is only as a result of the inspection by the Commercial Tax Officer and the omission to disclose the turnover relating to the matches is wilful to avoid the liability of tax and the authorities, after considering the material on record, have recorded a finding that the omission was wilful on the part of the dealer and consequently the petitioner-assessee is liable to penalty in terms of Section 14(8) of the Act. The learned Counsel also contended that the petitioner was given a show-cause notice proposing to levy penalty at five times the tax due and after considering the explanation offered by the petitioner the assessing officer levied penalty of five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2), sub-section (3) or sub-section (4) shall not exceed five times the tax or fee due in case where the assessing authority is satisfied that the failure of the dealer to disclose the whole or part of the turnover or any other particulars correctly or to submit the return before the prescribed date, was wilful and in case where such failure was not wilful one-half of the tax or the fee. Further, as per the proviso when such failure occurred due to a bona fide mistake on the part of the dealer, no such penalty shall be levied. In the present case there is a clear finding that the omission to disclose the turnover relating to matches was wilful, as per the findings of the authorities below. In the light of the said findings the petitioner is liable to tax under Section 14(8) (a) as per which the penalty leviable shall not exceed five times the tax due. The assessing officer was given the discretion to levy penalty and the maximum is five times the tax due and the minimum may be any amount over and above the amount that was stipulated under clause (b) of Section 14(8) of the Act. In the present case, the grievance of the petitioner is that the penalty was levied by the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied on the same, Therefore, the levy of penalty at five times of the tax is quite justified and the first appellate authority rightly held that the levy of penalty at five times of the tax cannot be said to be unjust or improper. 9. From the above it is clear that the authorities below did not exercise the discretion that was provided under Section 14(8)(a) of the Act, whether it is a case for the levy of penalty in an amount equal to the tax due as a result of the suppressed turnover or it is a case requiring a penalty to be levied more than the amount of tax due in respect of the suppressed turnover, judiciously. 10. The learned Counsel for the petitioner referred to and relied upon a judgment of this Court in the case of Vijaya Wines v. State of Andhra Pradesh (1978) 42 STC 329 where it was held that the fact that the assessee liable to tax or merely because the assessee had not established that the sales made by him were second sales, it did not automatically follow that the assessee was liable to penalty. Although Section 14(2) sanctions imposition of levy of penalty on the turnover that was not disclosed by the dealer, penalty could not be imposed, unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le levying penalty, the discretion conferred on the authorities has to be exercised properly and judiciously in order to determine the quantum of penalty to be levied. A perusal of the orders passed by the statutory authorities does not disclose that any such discretion was duly exercised. No doubt in the present case the petitioner claimed that the omission was a bona fide action on its part which was not accepted by the authorities. But, however, taking the gravity of the omission, the penalty has to be levied. As the authorities below failed to exercise such discretion to levy appropriate penalty, though in the normal course, it may be a matter for remitting back to the authorities below for exercising such discretion, as the matter relates to an assessment year 1979-80, we deem it appropriate to consider the case on merits, instead of remitting the matter to the authorities. Considering the claim of the petitioner that it was under a bona fide impression that the turnover relating to the matches is not liable to tax at multi-point, the levy of maximum penalty at five times the tax due may not be appropriate. Further, taking into account all attendant facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
