TMI Blog1965 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner of Sales Tax on 14th February, 1964. At the conclusion of that order the Assistant Commissioner observed that during assessment it had been noticed that the petitioner had deliberately concealed its turnover and had submitted false returns; and that this called for action under section 43(1) of the Act and directed the issue of a notice to the petitioner under that provision. 3.. On receipt of the order of assessment and a notice of demand as also a notice under section 43(1), the petitioner applied for copies of certain documents relied on by the Additional Assistant Commissioner in the order of assessment passed by him. The petitioner's grievance is that copies of many documents were not given to it and copies of some do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed its turnover and had submitted false returns. It must also be noted that an appeal filed by the petitioner against the order of assessment dated 14th February, 1964, is pending before the appellate authority. The Additional Assistant Commissioner rejected the prayer of the petitioner for staying the penalty proceedings till the disposal of the appeal. 5.. Having heard learned counsel for the parties we have reached the conclusion that this application must be granted. Section 43(1) of the Act is as follows: "43. Power of Commissioner or appellate authority to impose penalty. -(1) If the Commissioner or the appellate authority in the course of any proceeding under this Act, is satisfied that a dealer has deliberately concealed his tur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings that the return filed by the assessee is false or that he has concealed his turnover cannot be made the sole basis of an order of penalty. In rebuttal of the evidence led by the department the assessee is entitled to adduce evidence to show that no penalty ought to be imposed on him. The provisions of section 43(1) are analogous to section 28(1)(c) and (3) of the Indian Income-tax Act, 1922. With reference to the provisions in the Indian Income-tax Act it has been held in several cases that it is for the department to establish that there has been conscious and deliberate concealment of income on the part of the assessee; that the findings given in assessment proceedings do not operate as res judicata in penalty proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order had been passed. The Additional Assistant Commissioner all along proceeded on the basis that it was for the petitioner to prove its innocence and not for the department to prove the guilt; and that the finding reached by him in the assessment proceedings about the petitioner having concealed its turnover and submitted false returns concluded the matter. It is thus plain that the order of penalty passed by the Additional Assistant Commissioner is patently in violation of the provisions of section 43(1) of the Act and cannot be sustained. 7.. The impugned order of penalty is so manifestly arbitrary and capricious that the applicant cannot be denied the relief of the issue of a writ of certiorari for quashing that order merely b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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