At, High Court of Judicature at Madras
By, THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN & THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
For the Appellant: K. Soundararajan for S. Chandrasekaran, Advocate. For the Respondent: Haja Nazirudeen, SGP.
(Prayer: Tax case appeal filed under Section 37 of the Act against the order of the Joint Commissioner dated 25.05.1998 made in F1 5489/96 and SMR No.314/96.)
The tax case appeal is preferred by the assessee against the order of the Joint Commissioner dated 25.05.1998 made in F1 5489/96 and SMR No.314/96 restoring penalty under Section 12(3)(b) of the TNGST Act read with Section 9(2-A) of the CST Act.
2. When the matter is taken up for orders, the counsel for the department as well as the counsel for the assessee submitted that the issue has been covered by the Division Bench of this court in the case of Appollo Saline Pharmaceuticals (Private Limited) vs. Commercial Tax Officer (FA) and others reported in (2002) 125 STC 505 in favour of the assessee to the effect that the penalty leviable under Section 12(3)(b) of the TNGST Act read with Section 9(2) of the CST Act cannot be levied in respect of the assessment made under Section 12(1) of the TNGST Act.
3. In the present case, the assessment year is 1993-94. The penalty has been levied only in respect of the assessment made under Section 12(1) of the TNGST Act which is against the statutory provision as well as the law laid down by this Court in the above said Judgment, wherein it was held thus:-
"....7. Though other sub-sections of Section 12 were amended by the State Legislature subsequently to the date of the Judgment in the case of Jayaraj Nadar & Sons (1971) 28 STC 700 (SC),sections 12(1) and 12(2) have remained in the same form. The legislative intention therefore, except during the period December 3, 1979 to May 27, 1993 and on and after April 1, 1996 must be taken to be to, permit the levy of penalty only in case where the assessment is a best judgment assessment made on an estimate and not by relying solely on the accounts furnished by the assessee in the prescribed return. On and after April 1, 1996 an explanation has been added below Section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under Section 12(3).
8. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates have therefore, to be regarded as assessments made under Section 12(1) to which the penal provisions of Section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside".
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ence, following the Judgment referred to above, we are of the view that the order of the Joint Commissioner restoring penalty is not in consonance with the statutory provision as well as the law declared by this Court in the above said Judgment. Hence, the tax case appeal is allowed. No costs.