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TMI Blog2021 (2) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by the Tribunal. Hence, on the said score also, the petitioner - assessee is bound to succeed. Levy of penalty under Section 27(3) and (4) of the Act - HELD THAT:- The levy of penalty under Section 27(3) of the Act arises for all the five years. However, the levy of penalty under Section 27(4) of the Act arises for the assessment years 2009-10 and 2010-11 alone. No specific ground was raised as to how the penalty was imposable. The First Appellate Authority granted relief to the assessee by setting aside the penalty, which was levied by the Assessing Officer. In doing so, the First Appellate Authority referred to Section 27(2) of the Act and held that the levy of penalty was provided under the said provision on the actual availing of input tax more than admissible input tax and found that the petitioner assessee reversed the input tax, which was availed owing to Section 19(20) of the Act much before finalization of the assessment. Therefore, the First Appellate Authority held that there was no excess availing of input tax and also reversal of input tax was not detected and not based on any suppression of fact or bogus claim - Ultimately, the penalty levied under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 63 without considering the facts of the case when the Explanation appended to the said Section directly applies to the facts of the case ? ii. Whether the Appellate Tribunal is right in sustaining the assessment of tax on other income relating to bank charges when the same is not relating to any sales and it is not liable to tax under the TNVAT Act? And iii. Whether the Appellate Tribunal is correct in reversing the order of the First Appellate Authority and sustaining penalty under Section 27(3) of the Act when there is no suppression much less willful suppression on the part of the assessee and when the Tribunal has not given any reasons for its decision? Additional Common questions in TCR. Nos.12 and 14 of 2020: iv. Whether the Appellate Tribunal is correct in reversing the order of the First Appellate Authority and sustaining penalty under Section 27(4) of the Act when ITC is reversed by the assessee/petitioner before the finalisation of assessment and when no excess ITC is claimed ? And v. Whether the Appellate Tribunal is correct in reversing the order of the First Appellate Authority and sustaining penalty under Section 27(4) of the Act on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son for the receipt of records on account of failure of the dealer to produce the same before the Assessing Officer and that the First Appellate Authority was not justified in receiving the documents and instead of remanding the cases, erred in dismissing the cases. 6. Unfortunately, the Tribunal failed to take note of the Explanation to Section 63 of the Act, which states that nothing in this Section shall apply to accounts, which are built up from the initial accounts. Therefore, the Statute did not contemplate a complete embargo on the First Appellate Authority from admitting documents at the appellate stage. This issue was considered in several decisions as to how the matter has to be dealt with by the Appellate Authority and we may refer to the following decisions to support the view that the First Appellate Authority did have jurisdiction to admit documents. 7. In this regard, it would be beneficial to refer to the decision of this Court in the case of DCCT, Coimbatore Division, Coimbatore Vs. New Ajantha Wines [reported in (1979) 44 STC 327] wherein the Hon'ble Division Bench considered the effect of Section 39B of the Tamil Nadu General Sales Tax Act, 1959 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factual position to ascertain as to whether the First Appellate Authority admitted fresh documents or were the documents available on record even when the assessment was completed. This aspect has been clearly brought out by the First Appellate Authority in his orders dated 31.12.2014, which aspect has not been examined by the Tribunal. Hence, on the said score also, the petitioner - assessee is bound to succeed. 11. In fine, the finding rendered by the Tribunal on the first issue with regard to Section 63 of the Act is held to be not sustainable and accordingly, the same is set aside. 12. The next issue is with regard to the levy of penalty under Section 27(3) and (4) of the Act. The levy of penalty under Section 27(3) of the Act arises for all the five years. However, the levy of penalty under Section 27(4) of the Act arises for the assessment years 2009-10 and 2010-11 alone. 13. From the memoranda of grounds of appeal filed by the Department before the Tribunal, we find that no specific ground was raised as to how the penalty was imposable. The First Appellate Authority granted relief to the assessee by setting aside the penalty, which was levied by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 01.4.2010. This aspect should have been noted by the Assessing Officer. But, there was no reference to the same nor the Revenue raised any issue with regard to that before the Tribunal. 17. In any event, we are convinced with the finding rendered by the First Appellate Authority deleting penalty, which was levied under Section 27(4) of the Act and the said finding is upheld. In so far as the levy of penalty under Section 27(3) of the Act is concerned, we have upheld the finding of the First Appellate Authority that the receipts did not relate to any sale and hence, the question of levy of penalty under Section 27(3) of the Act cannot be sustained. 18. Furthermore, we note that there was no allegation made by the Department that the assessee had willfully not disclosed any material nor produced false bills/vouchers or false declaration certificates or false documents with a view to support their claim for input tax credit. On facts, the First Appellate Authority found that the input tax credit availed by the assessee was reversed much prior to completion of the assessment, which was completed on 10.10.2014. 19. In addition to that, what was alleged was that the input ..... X X X X Extracts X X X X X X X X Extracts X X X X
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