TMI Blog2010 (10) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the petitioner has produced those materials before us and on a perusal of the same, it appears, prima facie, to us that the petitioner receives orders from the specified customers for printing of ledgers, receipts, bill books, etc. and these works are undertaken and after the printings are completed, the printed materials are supplied to the customers who placed orders. There is absolutely no discussion about the above materials by the appellate authority as well as the Tribunal. In fact, the appellate authority has merely relied upon the earlier finding, viz., that the dealers have sold printed book, forms to the public and on verification of the assessment file found that the assessee had paid tax both at the rate of 8% and 5%, as pointed out by the assessing authority. There are no materials in support of the said finding. Hence, on the said ground alone, the findings of both the appellate authority as well as the Tribunal are liable to be set aside and the matter should be remitted back to the assessing officer for fresh consideration. Tax Case Revision is allowed - Tax Case (Revision) No.2071 of 2006 - - - Dated:- 7-1-2010 - D. Murugesan And P. P. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the bona fide belief that the printed materials are taxable at the rate of 8%, the petitioner had collected the said amount of tax for the period from 1.4.1992 to 30.9.1992, whereas, according to the assessing authority, those printed materials are liable to be taxed only at the rate of 5%. According to the learned counsel for the petitioner, in any case, for the works contract, no tax is leviable and therefore, the finding that the petitioner is liable to pay tax on the printed materials also suffers for the said reason and correspondingly, the penalty is also liable to be set aside. 4.1.Mr.Haja Naziruddin, the learned Special Government Pleader, would submit that insofar as the non-consideration of documents, the petitioner/assessee did not place those materials before the assessing authority even when the petitioner was given opportunity by way of show cause notice calling for objections. Only for the first time, these materials were placed before the first appellate authority. Nevertheless, those materials were considered and rejected and consequently, the assessment order was confirmed by both the appellate authority as well as the Tribunal. 4.2.Insofar as the imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 8% and 5%, as pointed out by the assessing authority. There are no materials in support of the said finding. Hence, on the said ground alone, the findings of both the appellate authority as well as the Tribunal are liable to be set aside and the matter should be remitted back to the assessing officer for fresh consideration. 6.The next question is as to whether the revenue is entitled to invoke the provision of Section 22(2) of the Act and impose penalty on the given facts and circumstances of the case. Before we consider the facts of the present case, the law on this issue can be referred to. The learned Special Government Pleader would brought to our notice that in terms of clause (i) of Section 22(2) of the Act, if any person or registered dealer collects any amount by way of tax or purporting to be by way of tax in contravention of the provision of sub-section (1), penalty shall be levied at the rate of 100% of the amount collected, even where excess amount is collected in bona fide belief that it could be collected. This provision gives no option for the revenue except to impose the penalty and collect the same from the dealer, who collected the tax in violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not collected. 'Collected', in an Australian Customs Tariff Act, was held by Griffith, C.J., not 'to include money deposited under an agreement that if it was not legally payable it will be returned'. (Words Phrases, page 274). We, therefore, semanticise 'collected' not to cover amounts gathered tentatively to be given back if found non-exigible from the dealer. The Division Bench placing reliance on the above observations of the Supreme Court with regard to the expression collected , has ultimately found that where any amount collected by way of tax or purported to be by way of tax under the Act except in accordance with the provision of the Act or the Rules, shall mean collected illegally and retained or collected and kept as his . The Division Bench had considered that in the event the tax collected by the dealer, which otherwise the dealer would not have, but had repaid, the collection was bona fide on the part of the dealer and therefore, the provision cannot be made applicable automatically. 9.As the judgment in Mohammed Ibrahim Sahib's case, cited supra, is rendered on the basis of the Supreme Court judgment in regard to the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue in not invoking that provision in the event the dealer is able to satisfy with the sufficient explanation. Such explanation may also include the bona fide belief on the part of the dealer in collecting the said tax. This is what precisely considered by this Court in Mohammed Ibrahim Sahib's case, referred supra, wherein it has been held that in the event there was a bona fide belief, the application of provision is not automatic. 12.We may also note that there must be a specific application of mind by the assessing authority as to the invocation of section 22(2) for levy of penalty in a given case and satisfy himself as to the above. A careful reading of the assessment order does not indicate anything of such application of mind satisfying the assessing officer for imposition of penalty and both the first appellate authority as well as the Tribunal have also not independently applied their mind to this aspect. 13.For the foregoing discussion, we are of the considered opinion that on both the grounds, the proceedings relating to the assessment year 1992-93 are liable to be set aside and the matter should be remitted back to the assessing officer for fresh considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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