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TMI Blog2022 (11) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... followed where it was held that Since a finding on this crucial aspect is necessary to find out whether penalty can be levied under section 12(3) or 12(5) of the Act, we are constrained to remand the case back to the assessing authority to render a finding on this aspect as to whether the assessment is based on the books of accounts or de hors the books of accounts. Though the views expressed in State of Tamil Nadu V. Indian Silk Traders, [ 1991 (10) TMI 302 - MADRAS HIGH COURT ] are fraught with contradictions and require for a re-consideration, we are refraining from taking a different view, as the view of this Court in the aforesaid case was followed by this Court in State of Tamil Nadu vs. Periyar District Cooperative Milk Produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsection (4), shall be equal to two per cent of the tax payable for every month or part thereof during which the default in the submission of the return continued, subject to a maximum of fifty per cent of the tax; and (iii) which, in the case referred to in clause (iii) of subsection (4), shall not be less than fifty per cent but shall not be more than one hundred and fifty per cent of the difference in tax payable on the turnover disclosed in the return and that determined by the assessing authority: Provided that no penalty under sub-sections (3) and (5) shall be imposed after a period of five yars from the expiry of the year to which the assessment relates and unless the dealer affected has had a reasonable opportunity of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed levy of penalty ofRs.1,04,888 under section 12(5)(iii) at 150% of the tax due. The learned Appellate Assistant Commissioner on appeal deleted the entire penalty. The assessment year in the case on hand relates to 1991-92. No doubt, it is an admitted fact that, according to the assessing officer, incorrect/incomplete return was filed by the respondent/assessee. For the incorrect/incomplete return, levy of penalty is warranted. So, considering the facts and circumstances of the case, we feel, in the interest of justice, 50% of levy of penalty would suffice which will meet end of justice and order accordingly. 5. The petitioner is involved in manufacture of goods. The dispute arose as to inclusion of cylinder holding charges and delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd. V. Assistant Commissioner of Sales Tax [1980] 45 STC 197 has been followed. 8. The specific case of the petitioner is that in the light of the decision of this Court in State of Tamil Nadu V. Indian Silk Traders reported in [1994] 94 STC 157 (Mad) , imposition of penalty even to the extent of 50% cannot be justified. 9. Learned counsel for the petitioner drew the attention of this Court to paragraph Nos. 8 9 of the aforesaid decision of this Court. It is further submitted that this view has also been followed by Division Benches of this Court in the judgments reported in 116 STC 123 (State of Tamil Nadu V. Periyar District Cooperative Milk Producers Union Ltd.) 118 STC 160 ( State of Tamil Nadu V. Papco O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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