TMI Blog1995 (4) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... otes 237, 238 dated June 17, 1981 which was sold in a single transaction by invoice No. 1 dated August 4, 1981. One of the partner's house was inspected by the Enforcement Wing on October 29, 1981. The partner one M. Ganesan admitted in the statement on October 29, 1981 that there was a single sale transaction and that the sales tax was collected. An application form for registration was submitted and the Enforcement Wing Officers obtained two cheques towards taxes and registration fees due on the spot. On the basis of this investigation assessment was made on January 31, 1983. The total turnover was determined as Rs. 2,02,400. This is the amount which was accepted before the Enforcement officers by the partner of the firm. The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this Court. The learned Additional Government Pleader (Taxes) submitted that the Tribunal was not correct in deleting the penalty levied under section 12(3) as well as under section 22(2) of the Act. It was submitted that for the purpose of levying penalty under section 12(3) of the Act, it is not necessary to consider whether there is any element of wilfulness in not filing the return in time. In the case of levying of penalty under section 22(2) of the Act it was submitted that the application for registration was filed beyond 30 days from the date of commencement of the business and therefore the non-issuance of the certificate by the department would not authorise the assessee to contend that the deemed certificate would operate fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on the basis of such accounts, if such dealer has (1) failed to submit the prescribed return; or (2) failed to submit the prescribed return within such period as may be prescribed; or (3) if the return submitted is found to be incorrect or incomplete. Under section 12(5) of the Act the assessing authority may in the order of assessment or by a separate order, direct that the dealer shall, in addition to the tax assessed under sub-section (4) pay by way of penalty a sum which in the case referred to in clause (1) of sub-section (4) shall not be less than 50 per cent, but which shall not be more than 150 per cent of the amount of tax payable...........". Therefore, a plain reading of section 12(4) and 12(5) of the Act would go to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion application was handed over to the Enforcement authorities on October 29, 1981 and inasmuch as no registration certificate was issued by the department within 30 days from October 29, 1981, the assessee would have obtained a deemed certificate as contemplated under rule 24(8) of the Sales Tax Rules. If it is so, the certificate would enure from the date of the commencement of the business. The assessee also submitted that before the end of the assessment year, the assessee had also paid the tax to the department. Under such circumstances, according to the assessee, no penalty is exigible under section 22(2) of the Act. 7.. It remains to be seen that the first sale took place on August 4, 1981. The inspection was done on October 29, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not filed within 30 days from the date of the commencement of the business. In the present case, inasmuch as the application was filed for registration beyond 30 days from the date of the commencement of the business, the non-issuance of the registration certificate by the department within 30 days from the date of application would amount to rejection of the application as per the provisions of rule 24(8) of the Tamil Nadu General Sales Tax Rules. In view of these facts that on the date that is on August 4, 1981, when the assessee collected the tax of Rs. 30,360 it is collected without the authority of the law. Therefore, penalty is exigible under section 22(2) of the Act. Considering the submissions made by the learned counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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