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2019 (4) TMI 116 - HC - VAT and Sales TaxQuantum of penalty - suppression of taxable turnover - filing of revised return - Section 26 of the Puducherry Value Added Tax Act - Held that:- In terms of Clause (a) of the Puducherry Value Added Tax Act, the dealer shall not be eligible to file revised return if any action either has been initiated or pending under Section 24 or under Section 30 or under any other Section under the Puducherry Value Added Tax Act. Admittedly, the proceedings were initiated under Section 24(1) of the Act and the pre-assessment notices were issued in June 2006. The assessee, after having suffered the assessment order and agreeing to pay the tax, had filed the revised return. Such revised return is not a return in the eye of law and it is not maintainable. Therefore, the question of either accepting or rejecting such return does not arise, as such return can never be taken on file - thus, the contention raised by the assessee based on the plea that they have filed revised return, deserves to be outrightly rejected and it is accordingly rejected. Section 24(3) states that when making any assessment under sub-section (2), the assessing authority may also direct the dealer to pay in addition to the tax assessed, a penalty not exceeding double the amount of tax due on the turnover that was not disclosed by the dealer in his return or, in the case of failure to submit a return, double the amount of tax assessed, as the case may be. The proviso uses the expression “may also direct”, which appears to give an opinion that there is a discretion vested with the assessing officer. In the instant case, the assessee was a dealer in petroleum products and admittedly there has been a suppression of taxable turnover. However, the fact remains that the assessee has paid the tax as quantified by the assessing officer, though not in one single shot, but in installments as granted by the department. The imposition of 200% penalty would require a clear finding of the condemnatious conduct of the assessee and that the conduct of the assessee was thoroughly lacking bonafide. In the assessment order, there is a proposal for one and a half or two times penalty for suppression. It is true that the assessee did not give any explanation to the pre-assessment notice - taking note of the peculiar facts and circumstances of the case, it can be said that imposition of penalty at 200% was excessive and levy of penalty at 100% would meet the ends of justice. Admittedly, the assessee has paid the entire tax liability in installments as granted by the department along with the tax equal to 2% of such amount for each month or part thereof, after the date specified for its payment in terms of Section 37(4) of the Puducherry Value Added Tax Act - the judgement of the Tribunal in the case of M/S. SURYA SERVICE STATION VERSUS THE APPELLATE ASSISTANT COMMISSIONER (CT) , PUDUCHERRY [2018 (12) TMI 1542 - MADRAS HIGH COURT] applies to the present case, wherein the Court had dismissed the tax case revisions filed by the assessee and allowed the tax case revisions filed by the department and restored the order of the original authority on identical set of facts. The tax case revisions are dismissed.
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