TMI Blog2006 (2) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... passed an assessment order dated July 13, 1990, accepting the claim of the petitioner and granted exemption. However, by order dated July 10, 1991, the first respondent revised the earlier assessment order dated July 13, 1990 and disallowed the exemption granted earlier. Aggrieved, the petitioner preferred an appeal, A. P. No. 16 of 1991, before the Appellate Assistant Commissioner. The appellate authority, by his order dated December 29, 1992, remanded the matter back to the assessing authority for fresh consideration and passing orders, after giving opportunity to the petitioner. Since the petitioner, despite the summons issued by the assessing authority, did not appear before the assessing authority, the assessing authority proceeded with the matter ex parte and passed an order dated March 7, 1997 on the basis of the materials available on record and levied the tax of Rs. 35,887 and also levied the penalty of Rs. 67,269. The petitioner, aggrieved by the order of assessment, preferred an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner, by his order dated December 4, 1997, partly allowed the appeal by confirming the levy of tax and deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when there is a wilful and deliberate suppression or omission of turnover by the assessee, which escaped assessment but later on discovered by the assessing authority and brought to assessment under section 16(1)(a) of the TNGST Act. In the facts and circumstances of the present case, the question of levy of penalty does not arise at all inasmuch as there was no wilful and deliberate suppression or omission of turnover by the petitioner which escaped assessment as the petitioner had disclosed the total turnover in their monthly returns submitted before the assessing authority. Learned counsel submitted that the Appellate Tribunal erred in holding that the transaction in question falls under the category of suppression of taxable turnover and, therefore, levy of penalty is warranted. Learned counsel submitted that merely because the petitioner's claim to exemption was rejected by the department, that did not mean that the petitioner had suppressed anything and in support of his contention, learned counsel relied on the division Bench judgments of this court in Tan India Limited v. State of Tamil Nadu [2003] 133 STC 311 and Deputy Commissioner of Commercial Taxes, Trichy v. V. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s warranted. Learned counsel submitted that merely because the petitioner's claim to exemption was rejected by the department, that did not mean that the petitioner had suppressed anything and in support of his contention, learned counsel relied on the division Bench judgments of this court in Tan India Limited v. State of Tamil Nadu [2003] 133 STC 311 and Deputy Commissioner of Commercial Taxes, Trichy v. V. R. Kuppusamy Gounder and Sons [1995] 98 STC 408. No counter-affidavit has been filed by the department, but learned Special Government Pleader, supported the order passed by the Appellate Tribunal by reiterating the reasons stated therein. The short point for determination is whether the Appellate Tribunal was correct in setting aside the order passed by the Appellate Assistant Commissioner and directing the assessing authority to levy a minimum penalty of 50 per cent on the petitioner. The case of the petitioner, in short, is that the transaction in question is a consignment transfer to their agents outside the State, which is covered by the statutory declaration in form F and other relevant documents prescribed under the TNGST Act and, therefore, exempted from tax an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel, the petitioner had produced before the assessing authority all the necessary documents such as statutory declaration in form F, sale pattial, form XX, lorry receipts, consignment note, etc., and the assessing authority after verification of all these documents accepted the claim of the petitioner. Learned counsel further contended that the claim of exemption was originally allowed and mere disallowance of exemption in revision would not amount to escapement from the assessment due to wilful non-disclosure of assessable turnover and, therefore, no penalty is attracted. On perusal of the records available on record, I am of the view that the revision of assessment was only for the reassessment of the exempted turnover originally granted exemption by order dated July 10, 1991 which will not tantamount the revision for the escaped turnover and that only reported book turnover has been adopted for the purpose of assessment and thereby the assessment does not fall under section 12(2) of the Act. Deputy Commissioner of Commercial Taxes, Trichy Division, Trichy v. V. R. Kuppusamy Gounder and Sons [1995] 98 STC 408, which was relied on by the learned counsel for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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