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TMI Blog2016 (2) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... , determine to the best of his judgment, the turnover which has escaped assessment. But, Section 27(1)(a) is made subject to the provisions of Sub-section (3) - Sub-section (3) makes it clear that if the Assessing Authority is satisfied, in making an assessment under Sub-section (1)(a) that the escape from assessment is due to wilful non-disclosure of assessable turnover by the dealer, he may impose a penalty at the rates indicated in clauses (a), (b) or (c). In the case on hand, the assessee has filed monthly returns. In the monthly returns filed, for the period from 01.10.2008 to 09.7.2010, the total quantity of purchases was indicated as 2060 MT and the total quantity of sales was indicated as 1464 MT. Therefore, on the date of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questioning the confirmation of the levy of penalty by the Tamil Nadu Sales Tax Appellate Tribunal. 2. Heard Mr. C. Baktha Siromoni, learned counsel for the petitioner and Dr.Anita Sumanth, learned Special Government Pleader for the respondent. 3. The petitioner is a dealer in iron and steel. They were assessed under Section 22(2) of the TNVAT Act, as per the monthly returns filed. 4. There was an inspection of the premises of the petitioner on 09.7.2010, by the Enforcement Wing. It was found at that time that no stock was available with the assessee. But, as per the returns filed by the assessee, the total purchase made by them for the period from 01.10.2008 to 09.07.2010 was 2060 MT and the total sales they claimed to have made d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the respondent had recorded a finding of mens rea and unless the respondents had other material apart from stock variation, the levy of penalty under Section 27(3) is not warranted. 8. We have carefully considered the above submissions. 9. Under Section 27(1)(a) of the Act, where for any reason, the whole or any part of the turn over of business of a dealer has escaped assessment to tax, the Assessing Authority may within a period of five years from the date of assessment order, determine to the best of his judgment, the turnover which has escaped assessment. But, Section 27(1)(a) is made subject to the provisions of Sub-section (3). 10. Sub-section (3) makes it clear that if the Assessing Authority is satisfied, in making an as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and the quantity of stock arrived at on the basis of returns. As per the returns, the petitioner ought to have had a stock of 596 MT, but they had none. 14. If we keep the above background in mind and come back to the provisions of Sub-sections (1) and (3) of Section 27, it can be seen easily that this 596 MT had actually escaped assessment. To this extent, there cannot be any dispute or doubt. If this quantum had not escaped assessment, the petitioner would have paid tax on the same. 15. That takes us to the next question as to whether there was wilful non-disclosure. The very fact that the above fact came to light only during an inspection conducted by the Enforcement Wing, speaks for itself. When something is res ipsa loquitur, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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