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TMI Blog2024 (1) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the respondent for the year TIN 202-2013 vide proceedings dated 07.04.2016 under Section 27 of the Act. The petitioner challenged the said order before this Court along with the proceedings for the assessment year 2009-2010, 2010-2011 and 2012-2013. This Court has passed a Common order in W.P(MD)Nos.7982 to 7984 of 2016, vide order, dated 08.03.2021 and set aside the order on the grounds of natural justice and the respondent was directed to issue fresh personal hearing notice and while passing the order the respondent ought to consider each and every contention raised by the petitioner. 3. The respondent in order to give effect to the order granted personal hearing to the petitioner and the petitioner has filed their written submission, dated 17.03.2022. But the respondent without appreciating the written submission and without making any further verification and without giving any reason, confirmed the earlier order, dated 31.05.2022 which was communicated on 17.06.2022. The petitioner submitted that there are errors apparent on the face of the record since there are arithmetical error apart from confirmation of penalty which was levied without jurisdiction. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. 6. The contention of the petitioner is that the respondent has not stated any reason in the order. The explanations were totally ignored. No other verification was done with regard to quantum of reversal of ITC. In both the orders, it is stated that the penalty under Section 27(3)( C) and Section 27(4) of the Act is proposed to be levied. But, no reason was given with regard to levy and imposition of penalty at 300% for the year 2012-2013 for which there is no provision under Section 27(4) of the Act, even by the Amending Act 13 of 2015. Hence, the petitioner has filed this writ petition. 7. Pending writ petition, the respondent further proceed to impose penalty, vide impugned order, dated 04.01.2023 has imposed 300% penalty under Section 27(4) (2) of the Act for the Assessment year 2009-2010 and also levied penalty under Section 27(4) of the Act. Therefore, challenging the said impugned order, the petitioner had filed W.P(MD)No.2220 of 2023. Hence, both the writ petitions are taken up together and this Commons Order is passed. 8. The respondents have filed counter and stated that a proceedings under Section 27 of the Act was passed on 07.04.2016, challenging the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2006. The documents submitted by the petitioner was verified and consider in detailed and the revision order was passed on 07.07.2022 on merits and in accordance with law. The respondent further submitted that two Assessment orders have been passed already with two different set of issued on 07.04.2016 and 28.03.2018. Hence, the assessment order passed on 07.07.2022 was a consolidated order of earlier two Assessment orders. Also it is to be noted that the petitioner has filed a writ petition against the assessment order passed on 07.04.2016 only and they have not preferred any writ petition agaisnt the order passed on 28.03.2018. 11. The further contention of the petitioner is that only for the first time a turn over of Rs. 48,86,708/-was taken into consideration for the purpose of levy of penalty under Section 27(3) of the Act, which is not reflected in the earlier proceedings, dated 07.04.2016 cannot be accepted. As the details of the said turn over has already been discussed in previous order, dated 20.08.2013 which was also duly served to the petitioner. Moreover, the order, dated 28.03.2018 was also passed only after giving pre-revision notice and opportunity of hearing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial documents available on record. 14. The first contention of the petitioner is there should be a Show cause notice that the petitioner is liable under the Sections 27(1) and 27(2) of the Act. When the show cause notice is not issued by invoking Section 27 and 27(4) of the Act then levying penalty under those sections is violating the principles of natural justice. For which, the petitioner has relied on a Judgment rendered by this Court, dated 14.10.2022 in W.P(MD)No.30251 of 2019 its batch. The relevant portions are extracted hereunder: 8. Heard both learned counsel and perused the materials placed on record. The question of whether penalty under Section 27(3) of the Act is automatic in not a novel one, and has engaged the attention of this Court on more than one occasion. As early as in 1978, a Full Bench had looked into this very issue and had concluded, after noticing earlier decisions of this Court in Madras Metal Works V. State of Madras (31 STC 566), Rajam Textiles V. State of Tamil Nadu (39 STC 124), A.V.Meiyappan V. Commissioner of Commercial Taxes (20 STC 115) and Ponnusamy Asari V. State of Tamil Nadu (T.C.Nos.451 to 455 of 1969) in favour of the assessee, that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived at by the appellate authority, that the imposition of penalty under Section 27(3) is automatic, is erroneous in law. The appellate order, to this extent, is set aside. 16. These Writ Petitions are allowed in the above terms. No costs. Connected Miscellaneous Petitions are closed. 15. He further submitted that Section 27 of the Act, was amended and sub Section (4) was substituted and the same came into effect on 27.01.2016. The said amendment is extracted hereunder: 11. Amendment of Section 27 : In Section 27 of the Principal Act, for Sub-Section (4), the following sub-section shall be substituted, namely: "(4) In addition to the tax determined under sub-section (2), the assessing authority shall direct the dealer to pay as penalty a sum which shall be three hundred per cent of the tax due in respect of such claim. Provided that no penalty shall be levied without giving the dealer reasonable opportunity of showing cause against such imposition". 16. The said amendment proposes to impose 300% tax and it states that the said penalty cannot be imposed without giving the dealer reasonable opportunity of showing cause against the such imposition. When the Sub Clause (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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