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TMI Blog2020 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... on 38 of the Act envisages imposition of penalty where a return furnished is false or incorrect in any material particular. In the case in hand, the appellant had successfully suppressed the turnover not only in the returns but also in proceedings under Section 15(3) of the Act and the tax charged was illegally retained by the appellant. In such event, even if the transaction was disclosed in the books of account it will be of no benefit. Moreover, Section 38 of the Act is worded in a manner that it applies not only to maintaining false or incorrect account but also to filing incorrect or false returns, which the appellant did in the present case. The contention of the appellant that mischief was committed by authorised representative-Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case, the proceeding for levy of penalty without statutory notice in Form are legal proceedings? (d) Whether in the facts and circumstances of the case, when the record is seized by the Central Excise Authorities and no document available enabling the appellant to disclose its sale but the turnover is part of Balance Sheet, the turnover amounts to suppressed turnover and subject to penal action? (e) Whether in the facts and circumstances of the case, when the turnover which is part of books of account but could not reflected in the returns because of record in possession of the Central Excise Authorities, penalty can be imposed for suppression of turnover when the proceedings are through bankers and buyer, availed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 38 of the Act. The appeal filed before the 1st Appellate Authority was dismissed on 10.1.2013. Further appeal filed before the Haryana Tax Tribunal, Chandigarh (for short, 'the Tribunal') also met the same fate. Aggrieved of the order dated 24.5.2018 passed by the Tribunal, the present appeal is filed. While arguing the appeal, the only issue addressed is with regard to imposition and sustaining of penalty especially when the turnover could not be kept out of books of account. The pin-pointed question to be considered is whether in the facts and circumstances of the case the penalty for suppression of turnover can be sustained when the turnover was reflected in the books of account? In view of the discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of one year from, the last date prescribed for filing the last return relating to the assessment period or, the actual date when any return relating to the assessment period has been filed last, whichever is later. (3) On the day specified in the notice or as soon afterwards as may be, the assessing authority shall, after hearing such evidence as the dealer may produce and such other evidence as it may require on specified points, assess the amount of tax due from him: PROVIDED that no order under this sub-section shall be passed after the expiry of three years from the close of the year to which the assessment relates. xx xx xx 38. Failure to maintain correct accounts and to furnish correct returns. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 of the Act is made out. Argument is buttressed by stating that there was no malafide intention of concealment of sales in the quarterly returns. The contentions made are not well-founded. In order to appreciate the effect of not showing the sales in two quarterly returns, scheme of the Act with regard to assessment needs to be gone into. From Section 15(1) of the Act, it is evident that it is not in all the cases that assessment is framed. The return filed which is duly acknowledged subject to the provisions of sub-section (2) of Section 15 of the Act is deemed to have been assessed for the year. In case the return filed is incomplete as per the proviso, an opportunity is provided to complete the same. As per sub-section (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if the transaction was disclosed in the books of account it will be of no benefit. Moreover, Section 38 of the Act is worded in a manner that it applies not only to maintaining false or incorrect account but also to filing incorrect or false returns, which the appellant did in the present case. The contention of the appellant that mischief was committed by authorised representative-Mr. Ram Tirath has rightly been rejected by the Tribunal by stating that no benefit could have been derived by Mr. Ram Tirath by suppressing the sales in question and filing false returns. The saving of tax, if any, was to the appellant. There is another aspect of the matter. The appellant is a public limited company. It is hard to believe that one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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