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2019 (12) TMI 425 - HC - VAT and Sales TaxLevy of penalty u/s 12(5)(iii) of the T.N.G.S.T. Act - sale of REP licences by the assessee during the assessment period - Assessment Year 1992-93 - HELD THAT:- The imposition of penalty or deletion thereof is essentially a question of discretion and therefore the final fact finding body i.e., the Tribunal constituted under the provisions of the TNGST Act, and unless the findings for setting aside or imposition of penalty are found to be perverse, no question of law arises for consideration for this Court in its revisional jurisdiction. Unless the ingredients for invoking the penal provisions are satisfied and there are clear findings by the assessing authority about mens rea or lack of bonafides on the part of the assessee in applying such provisions, the discretion employed by the Tribunal to delete the penalty cannot be held to be perverse. Prior to Assessment Year 1992-93, the judgment of this Court did not permit imposition of penalty in such cases, but from Assessment Year 1992-93 onwards, the judgment did not make it compulsory to impose penalty. Therefore, the argument of Revenue to that effect is misconceived. Since admittedly in the period of assessment of Assessment Year 1992-93 itself, the High Courts were seized of the controversy about the REP licences itself being treated as 'goods or not', the non disclosure of the sale transactions in the returns, even though such transactions were part of the Books of Accounts maintained in the regular course of business by the Assessee, it cannot be said that the penal provisions of Section 12(5)(iii) of the Act stood automatically attracted - Penalty not levied - petition dismissed - decided against Revenue.
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