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TMI Blog2021 (3) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no allegation of willful suppression made by the assessee. In the assessment order dated 02.12.2016, there is no finding rendered by the Assessing Officer as to why penalty is being levied. Therefore, the Tribunal need not have embarked upon such exercise and converted itself into a fact finding body of the first instance without noting the fact that they are an Appellate Tribunal examining the correctness of the finding recorded by the First Appellate Authority. Thus, the Tribunal committed a serious error in reversing the order passed by the First Appellate Authority. The tax case revision is allowed. - Tax Case Revision No. 4 of 2021 and C. M. P. No. 497 of 2021 - - - Dated:- 2-3-2021 - THE HONOURABLE MR.JUSTICE T.S.SIVAGNANA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready paid by the assessee, the Assessing Officer proposed to levy penalty at 150% by invoking power under Section 27(3) of the TNVAT Act. The assessee submitted their objections dated 01.11.2016. The Assessing Officer by order dated 02.12.2016 rejected the objections and confirmed the proposal in the revision notice dated 18.04.2016. Aggrieved by the same, the assessee preferred appeal before the Appellate Deputy Commission (CT)(FAC), Erode. Two issues were considered by the First Appellate Authority, namely, whether the stock variation noticed at the time of inspection and levy of tax was sustainable on facts and law and secondly, whether the levy of penalty under Section 27(3) of the Act was correct. So far as the first issue is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Assessing Officer states that he proposes to levy penalty under Section 27(3) of the TNVAT Act at the rate of 150%, there is no reason assigned by the Assessing Officer to show as to why in the facts and circumstances of the case, he thought fit to make a proposal for levy of penalty. In fact a prima facie finding with regard to the mensrea in the conduct of the assessee should find place in the proposal. The assessee submitted their objections dated 01.11.2016 objecting to the revision of assessment as well as objecting to the proposed levy of penalty and in particular contending that the Assessing Officer proposed to invoke Section 27(3) in a generalized manner without quantifying the same and establish the ingredients which would w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer as to why penalty is being levied. Therefore, the Tribunal need not have embarked upon such exercise and converted itself into a fact finding body of the first instance without noting the fact that they are an Appellate Tribunal examining the correctness of the finding recorded by the First Appellate Authority. Thus, in our considered view the Tribunal committed a serious error in reversing the order passed by the First Appellate Authority. 8.For all the above reasons, the tax case revision is allowed, the order passed by the Tribunal is set aside, the order of the First Appellate Authority dated 06.04.2017 is restored and the question of law framed for consideration is answered in favour of the petitioner/assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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