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TMI Blog2011 (2) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Whether in the facts and circumstances of the case, the Tribunal is right in sustaining the penalty in respect of estimated addition in view of Explanation to section 12(3)(b), which provides for deduction of tax due on the estimated turnover for the purpose of calculating penalty?" The brief facts are, the petitioner-assessee is a dealer in brasswares. It reported a total and taxable turnover of Rs. 7,93,057. The assessing authority determined the same at Rs. 8,98,897 and levied penalty of Rs. 430. While assessing the liability of tax, the assessing authority initially proposed to assess 70 per cent of the turnover at eight per cent under the residual entry of Part B of the First Schedule and 30 per cent at four per cent under item 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pala, learned counsel appearing on behalf of the petitioner and Mr. Haja Naziruddin, learned Special Government Pleader for the respondent. At the outset, the learned counsel for the petitioner stated that the question of law relating to bifurcation of the brasswares into domestic utensils and other wares based on item 7C of Part B of the First Schedule and the residuary item of the said Part of the First Schedule, is not under challenge. As far as the enhancement of the apportionment from 35:65 to 50:50, as held by the Appellate Assistant Commissioner is concerned, the learned counsel pointed out that while the assessing authority has given specific reasons for making the apportionment at 65 per cent and 35 per cent, for enhancing the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, that part of the order of the Appellate Assistant Commissioner in altering the ratio from 35:65 for other brasswares and domestic utensils to 50:50 cannot be justified, inasmuch as the same was without any legally acceptable material. As far as the levy of penalty is concerned, under Explanation (1) to section 12(3)(b), it is stated that when the turnover represents additions to the turnover as per books made by the assessing authority without reference to any specific concealment of turnover from the accounts, for the purpose of levy of penalty, such added turnover should be deducted. In the case on hand, there is no such additions to the turnover, except making an apportionment, for the purpose of fixing the rate of tax at four per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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