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TMI Blog2019 (11) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... Y COMMISSIONER (C.T.) , COIMBATORE VERSUS VSR. RAMASWAMI CHETTIAR AND BROS. [ 1975 (8) TMI 114 - MADRAS HIGH COURT] wherein it was held that the Assessing Authority has no jurisdiction to impose penalty by a separate and independent order. Petition allowed - decided in favor of petitioner. - W.P.No.29903 of 2018 And W.M.P.No.34908 of 2018 And W.M.P.No.11567 of 2019 - - - Dated:- 18-11-2019 - Mr. Justice K. Ravichandrabaabu For the Petitioner : Mr.D.Vijayakumar For the Respondent : Mr.M.Hariharan Additional Government Pleader (T) ORDER This Writ Petition is filed challenging the order of the respondent dated 28.03.2018, relevant to the assessment year 2016-17 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the assessment order imposing penalty alone separately without there being an order of assessment in respect of the tax component. In support of his contention, the learned counsel relied on 2011(37) VST 594(Madras) (SSD Oil Mills Company Ltd. v. State of Kerala) and an order made in W.P.No.32777/2015 dated 28.09.2016. 5. Learned Additional Government Pleader, on the other hand, contended that but for the inspection, the petitioner would have evaded the tax and therefore, the imposition of penalty is justifiable. However, in respect of the specific ground raised by the petitioner that no separate order for penalty can be passed, the learned Additional Government pleaser is not in a position to place any contra decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officials cannot be the only source or reason for passing the order of assessment and on the other hand, it may be one of the source or reason for doing so, since the Assessing Officer while discharging the function of quasi judicial authority while making the assessment, has to pass an order with independent application of mind. In this case, the Assessing Office has straightaway issued the notice of proposal only for imposing penalty and thereafter, passed the impugned order confirming the proposal. Thus, it is evident that the order impugned in this writ petition is an independent order levying penalty alone without assessing the tax liability. The question as to whether the independent or separate order levying only penalty can be pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 by 12C Section 16(2) will lose its vitality, hence, the decisions have no relevance cannot be accepted by any standards of reasoning. 5. In the circumstances, even though the writ petition is as against the penalty order, I have no 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 328 and on the admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the view of the officer that by introduction of section 12C, section 16[2] would lost its validity, rendering the decision irrelevant, could not be accepted by any standard of reasoning. Therefore, the penalty levied through an independent order under section 16[2] of the Act was to be set aside. 5. By applying the above decision to the facts of the instant case, it has to be necessarily held that the impugned order is not sustainable. Accordingly, the writ petition is allowed and the impugned order passed by the respondent dated 10.09.2015 is set aside. No costs. Consequently, the connected miscellaneous petition is closed. 10. Learned Additional Government Pleader, as stated supra, is not in a position ..... X X X X Extracts X X X X X X X X Extracts X X X X
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