TMI Blog1993 (1) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent-Additional Sales Tax Officer issued a notice under section 19 of the Act proposing to revise the assessment order for the year 1987-88 refixing the taxable turnover at Rs. 62,40,337.50. 3.. Exhibit P1 dated 22nd May, 1989, is the revised assessment order under section 19 as per which the escaped turnover is found to be Rs. 21,42,550. The total tax involved in the escaped turnover is Rs. 2,57,106. 4.. Subsequently the first respondent issued exhibit P2 notice proposing to levy penalty under section 45A read with sub-section (2) of section 19 of the Act. The petitioner thereupon filed objection evidenced by exhibit P3. After the enquiry the first respondent passed an order levying a penalty of Rs. 2,80,000. Exhibit P4 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 15th May, 1989, the assessee paid the abovesaid collected tax and till that date it was unauthorisedly retained with her. As per the Rules the collected tax for a particular month shall be paid over to the Government before the 20th of the succeeding month during the relevant period. Thus the petitioner had become not only a defaulter of payment of tax, but the violator of the provisions contained in section 22 of the Act. 6.. The regular assessment for the year 1987-88 was reopened under section 19 as per exhibit P1 order on the ground that the turnover of Rs. 21,42,550 representing the sale value of 35,800 bags of cement purchased inter-State as revealed from form VI register maintained under the Rules was escaped assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt the satisfaction contemplated in sub-section (2) shall be in the course of making the assessment. That does not mean the assessing authority shall issue notice proposing action to levy penalty on the date of passing the escaped assessment order itself or to direct the dealer to pay the penalty along with the tax assessed under sub-section (1). It does not prescribe a period within which the notice shall be issued or the penalty shall be paid. Therefore it follows that the said notice shall be issued within a reasonable period by the assessing authority after passing the order under sub-section (2). Needless to state that such reasonable period depends on facts and circumstances of each case. No hard and fast rule can be laid down in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the order under sub-section (2). 10.. As evident from exhibit P4 the penalty has been levied in the present case for violation of clause (d) of sub-section (1) of section 45A read with sub-section (2) of section 19. The violation of clause (d) of subsection (1) of section 45A is already discussed and found proved. What is then required to be proved is that there is "wilful non-disclosure of assessable turnover" causing escapement. It was the assessee who had issued C forms for the purchase of cement from outside the State. Out of 1,32,600 bags so purchased 98,965 bags were sold during the assessment year. But the assessee did not reveal the entire sale in respect of which the sales tax at the point of first sale was collected. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over relating to sale to a Government company and showed the amount in the trading account for the said period. The penalty under section 45A was therefore levied. The assessee gave explanation that the failure to show the said turnover in the monthly return was for the reason that the payment was made in the subsequent months. In that situation this Court said that the assessing authority ought to have accepted the explanation and dropped the proceedings for levy of penalty under section 45A of the Act. In that case there was no separate proceedings for assessment or reassessment since it only related to monthly returns. The above two decisions relied on by the petitioner would not apply to the facts of the present case where there was esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied is Rs. 2,80,000 whereas the tax evaded is Rs. 2,57,550. The Deputy Commissioner has independently evaluated the question and for the reasons recorded the penalty amount was reduced to Rs. 2,50,000. The Board of Revenue did not interfere in the quantum obviously for the reason "first revisional authority has applied his mind to the facts of the case and given due relief'. After anxiously considering all the aspects, this Court finds it difficult to interfere in the quantum. The penalty levied is reasonable and rational. This is a case where the assessee had collected tax during the assessment year and it was paid long after the expiry of the assessment year. It was also found that the escapement was due to wilful non-disclosure of as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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