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2009 (6) TMI 936 - HC - VAT and Sales TaxWhether, in the facts and circumstances of the case, the Tribunal is legally correct in having deleted the penalty levied under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 based upon the decision in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [2001 (10) TMI 1100 - MADRAS HIGH COURT] while for the assessment year 1980-81 penalty is leviable under section 12(5)(iii) of the Act for filing of incorrect and incomplete returns and therefore the said decision cannot be applied to this case? Held that:- The conduct of the respondent-assessee in not including the freight charges and packing charges in the taxable turnover cannot be held to be a deliberate or intentional act on its part with a view to defeat its tax liability. On the other hand, the submission of the return of the respondent-assessee during the relevant year was fully supported by the Division Bench decision of this court which held the field till the year 1992 when it came to be reversed in the decision of the honourable Supreme Court in Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1992 (10) TMI 228 - SUPREME COURT OF INDIA]. As held in the decision of this court reported in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [supra], under section 12(4) specific expression used is "may " for the purpose of levying of penalty. We are convinced that the order of the Tribunal in having set aside that part of the order of the Assistant Commercial Tax Officer in having imposed penalty was justified and the same was perfectly in order. We therefore answer the question of law against the appellant and in favour of the assessee
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