TMI Blog1981 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... on 45(2)(cc) for contravention of section 40(1) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called as the Act). The authorities, on the basis of the so-called admission, proceeded to impose a penalty of Rs. 1,000 for each accounting year as if the petitioner had asked for compounding the offence. In these petitions, the first point taken by the learned counsel for the petitioner is that in so far as W.P. No. 5765 is concerned, since section 45(2)(cc) came into effect only on and from 1st December, 1972, it could not be applicable in respect of the assessment year 1971-72. There being no retrospective application, this point taken deserves to be upheld, and in this view, in respect of the said year the penalty imposed cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g satisfied that the amount involved being not forming part of the earlier assessments made, the books having been maintained for different purposes not connected with the turnover involved under the Sales Tax Act, it has thought it fit to remit the five cases back to the assessing officer for fresh disposal in the light of the findings rendered by it. In so doing, in the same paragraph in the later portion it is stated: "In the instant case the excess found with reference to fertilisers and pesticides in the personal diaries had escaped assessment and the first sales turnover of such excess quantity had to be estimated by best judgment." This conclusion only discloses that the anamath accounts by and far reflect only the accounts which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended the extent to which the escapement has occasioned and as now made out in the order of the Tribunal. It is in this context the learned counsel for the petitioner refers to Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) wherein it was held that penalty will not be imposed merely because it is lawful to do so, and before even the discretion is exercised, the concerned authority must take into account all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is only a marginal difference and no wilful intention to avoid the payment of tax under the Act, certainly the petitioner would not have given the consent for being penalised and compelled to pay the maximum penalty. Hence, under the circumstances above-stated, it cannot be said that his so-called consent or statement could still be relied upon by the respondent, and as if the order passed cannot no longer call for any fresh consideration. Therefore, without reference to the so-called consent given by the petitioner, it is now incumbent upon the respondent to consider the matter, on what has since been made out by the orders of the Tribunal and that of the Deputy Commercial Tax Officer, in the aforesaid two orders and proceed to find ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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