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TMI Blog2021 (3) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ent prior to the issuance of the pre-assessment notice and during the assessment proceedings. The finding of the Tribunal confirming the imposition of penalty at 1.5 times alone is set aside and the matter is remanded back to the Assessing Officer for a fresh consideration - tax case revision filed by the Revenue is allowed. - Honourable Mr.Justice T.S.Sivagnanam And Honourable Ms.Justice R.N.Manjula For the Petitioner : Mrs.V.Usha, AGP (Puducherry) For the Respondent : Mr.K.Govi Ganesan ORDER T.S.SIVAGNANAM, J. This revision has been filed by the Commercial Tax Department of Puducherry under Section 51 of the Puducherry Value Added Tax Act, 2007 ('PVAT Act' for brevity) challenging the order passed by the Puducherry Value Added Tax Appellate Tribunal (for short the Tribunal) dated 28.11.2019 in Tax Appeal No.14 of 2017. 2. The revision is admitted today on the following substantial questions of law : 1. Whether the Learned Presiding Officer without appreciating the facts of the case had, wrongly concluded that both the Assessing Officer and the Appellate Authority have admitted that the Respondent herein had paid the entire amount without any objections and it shows no w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me by letter dated 28.01.2009 to enable them to submit their reply. They did not submit their reply, but gave another representation dated 18.05.2009 requesting for further time to submit their objections. By another letter dated 23.09.2009, the respondent stated that some invoices were wrongly mentioned and requested to delete the same and they furnished the closing stock. Subsequently, the Department received authenticated copy of C-Form issued by HPCL, which reveal that they had effected total purchase of 230 kl of MS, 746 kl of MSD and Lubricants for the financial year 2006-07 valued at ₹ 3,10,12,739/-, but had reported a turn over of ₹ 1,06,72,148.87/- in their A2 returns, which proves that the respondent had filed incorrect returns with an intention to evade tax. The respondent was granted an opportunity to submit their objections. In spite of repeated notices, the respondent did not come forward with any justifiable reason, but disputed the allegation made against them by the petitioner. 7. On the contrary, they started effecting payments in terms of the proposal made in the pre-assessment notice, though not by way of single payment, but in installments, which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal was not right in concluding that there was no willful suppression. If, according to the respondent, there was a genuine and bona fide mistake, they ought to have established the same. Therefore, the suppression, which was done, has to be taken as willful suppression. 13. The plea, which was raised before the First Appellate Authority that the records of the HPCL ought not to have been relied upon and they should be permitted to cross examine the official's pleading, has to be outrightly rejected. 14. In fact, such a plea was rejected by this Court in the case of M/s.Surya Service Station Vs. The Appellate Assistant Commissioner [TC(R). Nos.29 to 31 of 2018, etc., batch dated 29.11.2018]. The decisions, which were referred to by the respondent and relied on by the Tribunal, are distinguishable. 15. The decision in the case of Golden Homes would not be applicable to the facts and circumstances of the case, because it is a case where the assessment was a revision of an assessment pursuant to an inspection and not a regular assessment as in the case of the respondent. Equally, the decision in the case of Balaji Floor and Wall Tiles would also not be applicable, because in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, placed strong reliance in Tvl.Nu-Tread Tyres (supra), which was a case arising under the provisions of the Central Sales Tax Act, 1956. 41. The Hon'ble Full Bench pointed out that the expression falsely represents clearly shows that the element of mens rea is necessary component of the offence and in the absence of mens rea, resort to penal provision would not be proper, unless it is established that the conduct of the dealer was contumacious or that there was deliberate violation of the statutory provisions or wilful disregard. The Hon'ble Full Bench had referred to the decision in the case of Vijaya Electricals vs. State of Tamil Nadu, (1991) 82 STC 268 , wherein, the dealer, who knew what was contained in the certificate of registration uses the C Form declarations in respect of goods not mentioned in the certificate and the representation made by the dealer was false. The Court noted this decision and held that it is sufficient to indicate that mens rea has application in tax default cases. 42..... 43. However, we are not convinced with the manner in which the Tribunal had interfered with the order passed by the first appellate authority by reducing the penalty m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars of income and the burden is on the assessee to show otherwise, by cogent and reliable evidence. However, the Hon'ble Supreme Court has pointed out that it is trite law that the voluntary disclosure does not release the appellant-assessee from the mischief of penalty proceedings. 20. In the earlier paragraph, we have held that the Tribunal was not right in concluding that there was no willful suppression. Applying the law laid down by the Hon'ble Supreme Court in the case of Mak Data P. Ltd. would fortify the conclusion arrived at by us. As pointed out earlier, when the Assessing Officer levied penalty 1 times of the tax demanded, the assessee claimed that it was their first year of business. However, that cannot be a sole reason. However, if the assessee is able to show some bona fide reasons, which prevented them from disclosing the full turn over, then the Assessing Officer would be entitled to examine the same for its correctness. 21. Therefore, only to that extent, we are of the view that the Assessing Officer can be directed to look into the aspect as to whether the penalty can be imposed or not. He shall do so by taking note of the conduct of the respondent pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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