TMI Blog1979 (11) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant on 8th January, 1973, the Deputy Commercial Tax Officer (Sago Investigation), Salem, and the Assistant Commercial Tax Officer, Attur, unearthed certain anamath pocket note books and slips showing unaccounted transactions. The entries in the anamath pocket note books and slips were compared with the account books of the appellant and, as a result of such comparison and verification, a total suppressed turnover of Rs. 1,92,381.82 was found. The joint Commercial Tax Officer issued a notice to the appellant herein asking him to show cause why his accounts should not be rejected and the turnover be estimated and a penalty under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959, be levied on the appellant. The appellant, by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies, where penalty was levied prior to the amendment of section 12(3), i.e., prior to 1st December, 1972. As there is no specific finding that there has been a wilful non-disclosure of assessable turnover in the order of assessment in this case and as the same is essential in order to justify the imposition of penalty under section 12(3) of the Act, I consider that the assessing officer is not justified in levying a penalty of Rs. 3,408 in this case. Hence, I set aside the levy of penalty in this case for want of a specific finding as contemplated in the judgments of the Madras High Court in the case of Oveekee Textiles v. Deputy Commercial Tax Officer, Tiruchengode[1971] 27 S.T.C. 439., and in the case of Ramakutty Nadar v. State of Madra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion for consideration is what exactly is the ambit of the expression "not wilfully disclosed" occurring in section 12(3). This expression has been the subject-matter of consideration by this Court. All that we are interested in pointing out at this stage is that for the purpose of sustaining the levy of penalty under section 12(3), it is not necessary that the officer imposing the penalty must mechanically reproduce the expression "not wilfully disclosed" as if it were a formula or manthram to be repeated in order to attract the levy of penalty or sustain the levy of penalty. If the discussion in the order of the assessing authority clearly shows that he had applied his mind to the question as to whether the non-disclosure was wilful or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was wilful non-disclosure. If it was not a wilful non-disclosure, the assessing officer would have stated as merely omissions. The use of the word 'suppression' clearly brings out the wilful nature of the non-disclosure and, therefore, the Tribunal was not right in setting aside the penalty merely on the ground that there was no finding of wilful non-disclosure." The above decision is important from more than one point of view. In the first place, that is the decision rendered with reference to section 16(2) of the Act and, as a matter of fact, the Appellate Assistant Commissioner in the present case has pointed out, as we have shown already, that after the amendment, section 12(3) has come on a par with section 16(2) with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out already, the joint Commercial Tax Officer, while declining to comply with the request of the appellant to drop the proceedings for the levy of penalty, has said that the anamath account and the slips were unearthed by him. That itself will clearly show what exactly the conclusion he came to with regard to the character of non-disclosure. The above decision of this Court in State of Tamil Nadu v. Sri Swamy and Company' has been followed by another Bench of this Court in State of Tamil Nadu v. R.R. Ramachari and Sons[1977] 40 S.T.C. 542. In that case, the Bench observed: "The question as to whether penalty could be levied in a case where there was only a finding of 'suppression' was the subject-matter of consideration by this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over is a necessary ingredient to make out that part of the section, namely, a deliberate intention to suppress an assessable turnover which should, in fact, have existed. It is not possible to say, merely from the fact that there has been a reassessment of escaped turnover on the basis of best judgment, that there hag been a wilful non-disclosure of assessable turnover. There must be something to indicate that the turnover did in fact exist and that the assessee had wilfuly not disclosed that assessable turnover." The same Bench repeated the same observations in another decision, namely, State of Tamil Nadu v. Estate of V.U. Panneer Nadar by P. Parameswari (wife)[1979] 44 S.T.C. 300. We are of the opinion that it is not possible to hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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