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2011 (6) TMI 699 - HC - VAT and Sales TaxWhether going by the reassessment proceedings under section 16 of the Tamil Nadu General Sales Tax Act, unless the assessing officer records a definite finding as to the wilfulness on the suppression of turnover, penalty could not be sustained? Held that:- A reading of the order of the Tribunal shows that it misdirected itself in treating the assessment as one under section 12(2) of the Tamil Nadu General Sales Tax Act. When it is not the case of the Department that the assessment was made under section 12(2) but one under section 16 as a case of reassessment, we fail to understand how the Tribunal considered the assessment as falling under section 12, to sustain the penalty under section 12(3). Considering the fact that the levy of penalty does not satisfy the requirement of section 16(2) of the Tamil Nadu General Sales Tax Act, we have no hesitation in setting aside the order of the Tribunal. It is also relevant to note that the levy of penalty is discretionary and not an automatic concomitant of reassessment. As far as section 16(2) proceedings are concerned, in the absence of consideration of any materials therein as to the wilful non-disclosure of assessable turnover, we do not find any ground to affirm the view of the Tribunal. Appeal allowed of assessee.
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