TMI Blog2013 (7) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the fact situation, they had reversed the claim. As pointed out by this Court, if at all there had been any notification indicating the bogus nature of the 'C' forms used by certain assessees, motive can be attributed to the assessee for misusing his declaration to gain concessional tax rate - there is no ground for attracting the provisions under Section 10(3) of the Tamil Nadu General Sales Tax Act, quite apart from the relevance of this provision to the assessment under the Central Sales Tax Act and that the assessment herein is made only under Section 16(1)(b) of the Tamil Nadu General Sales Tax Act, for which no penalty could be levied. - Decided in favor of assessee. - Tax Case (Revision) Nos 6 to 9 of 2013 - - - Dated:- 12-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts narrated that the assessee is a dealer in plywood and Hardboard. For the assessment years 2003-04 and 2004-05, the assessee offered turnover on inter-State sales, claiming concessional rate of tax on the strength of 'C' forms issued by three outside State dealers. Even though in the original assessment, concessional rate of tax was granted to the assessee, it was subsequently found on investigation that 'C' Forms produced by the outside State dealers were bogus; consequently, the assessment was reopened under Section 16(1)(b) of the Tamil Nadu General Sales Tax Act on a turnover of ₹ 43,94,943/- for the assessment year 2003-04 and ₹ 96,42,661/- relating to the assessment year 2004-05. Even though the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 16(1)(b) of the Tamil Nadu General Sales Tax Act, the question of invoking Section 16(2) of the Tamil Nadu General Sales Tax Act did not arise. Thus the first Appellate Authority deleted the levy of penalty. The Tribunal, however, viewed that it was only misquoting of the provision of the Act; since the assessee had knowingly furnished bogus 'C' forms, the element of mens rea was there, thus as per Section 9(2)(A) of the Central Sales Tax read with Section 10(3) of the Tamil Nadu General Sales Tax Act, penalty was leviable. In so holding, the Tribunal set aside the order of the first Appellate Authority and ordered levy of penalty under Section 9(2)(A) of the Central Sales Tax Act read with Section 10(3) of the Tamil Nadu Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly as regards the cases falling under Section 16(1)(a). Thus the Legislature has consciously omitted cases falling under Section 16(1)(b) from levy of penalty under Section 16(2) of the Tamil Nadu General Sales Tax Act. Section 16 of the Tamil Nadu General Sales Tax Act reads as under: Section 16. Assessment of escaped turnover.-- (1) (a) Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five years from the date of order of the final assessment by the assessing authority, determine to the best of its judgment the turnover which has escaped assessment and assess the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called for in this case. 12. As far as the claim for levy of penalty is concerned, as rightly pointed out by the assessee, if the Tribunal proposed to levy penalty on a provision different from what is available, then the assessee should have been put on notice to hear its arguments. However, the Tribunal upheld the levy, holding the view that the same could be upheld under some other provision too. Admittedly, in a case of this nature, no penalty could be levied under Section 16(2) of the Tamil Nadu General Sales Tax Act. However the Tribunal viewed that the collusion between the assessee and their buyer were established. Hence, the Appellate Assistant Commissioner was not justified in deleting the penalty on the sole ground that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Nadu General Sales Tax Act, the same has to be read as one falling under Section 10(3) of the Tamil Nadu General Sales Tax Act. 14. In the decisions reported in (2001) 123 STC 108 (AGFA-GAVERT India Limited V. State of Tamil Nadu) and (1999) 113 STC 40 (Lanco Packers and others V. State of Tamil Nadu and others), this Court pointed out to cases of issuance of bogus 'C' Forms and held that if there is publication of notification in the official gazette as regards the invalidity of 'C' and 'F' Forms much earlier to the furnishing of 'C' and 'F' forms, then the assessee-dealers-selling dealers could have no defence at all. However, where there is no publication of notification, the dealers would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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