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2015 (11) TMI 1224 - MADRAS HIGH COURT

2015 (11) TMI 1224 - MADRAS HIGH COURT - TMI - Levy of penalty - Non filing of monthly and annual returns - Tax paid after being pointed out by Department - Held that:- Where certain items which are not included in the turnover are discovered from the dealer's own account books and the assessing authority includes these items in the dealer's turnover, the assessment cannot be regarded as based on best judgment and penalty cannot be levied in respect of such items. As far as the case in hand is c .....

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ecided in favour of assessee. - W. P. No. 17731 of 2004 and W. P. M. P. No. 21082 of 2004 - Dated:- 18-11-2015 - The Hon'ble Mr. Justice R. Mahadevan, J. For the Petitioner : Mr. V. Sundareswaran For the Respondent : Mr. S. Kanmani Annamalai, AGP(T) ORDER Heard the learned counsel for the petitioner and Mr.S.Kanmani Annamalai, learned Additional Government Pleader (Taxes) for the respondent. 2. This writ petition has been filed challenging the order of the respondent dated 29.08.2003 as beyo .....

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;Duty Entitlement Pass Book" (shortly DEPB). Since the petitioner's turnover for the year related to export, it was granted the refund of customs duty in its account called DEPB. 3.2 According to the petitioner, since the issue as to whether such DEPB are goods and transfer of such DEPB is liable to sales tax under the Act was settled by the decision rendered by this Court on 19.12.2003 in W.P.Nos.15015 and 15016 of 2001, based on the decision of the Hon'ble Apex Court reported in 1 .....

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also paid on 27.07.2002, without any delay. 3.4. Thereafter, the petitioner filed returns disclosing the taxable turnover under the Act as ₹ 9,38,175/- for the year ending 2002 in Form A12 under the provisions of the Act. The assessment was also completed by the respondent by an order dated 29.11.2002, accepting the turnover. When that being the case, the petitioner was surprised to receive a notice dated 31.03.2003 proposing to initiate penalty proceedings under Section 16(2) of the Act, .....

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for the purpose of imposition of penalty under Section 16(2) of the Act at 150% of the tax due and not for the tax which was already paid by the petitioner even before the initiation of the assessment proceedings. 3.6 On receipt of the said notice, according to the petitioner, they have filed detailed objections on 19.06.2003 inviting the attention of the respondent that penalty is not warranted by quoting the decisions of this Court reported in 38 STC 382 in the case of Deputy Commissioner of C .....

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the petitioner is before this Court. 4. The subject matter in this writ petition is against the assessment order, wherein penalty was sought to be levied. According to the learned counsel for the petitioner, the entire turnover is culled out only from the books of the petitioner and there is no attempt to evade any tax to be remitted to the department. Hence, the learned counsel for the petitioner would submit that the petitioner seeks indulgence of this Court for setting aside the levy of penal .....

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