TMI Blog2017 (2) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... plete under sub-section (4) of Section 22, that penalty can be imposed by the Assessing Officer - but, as per the provisions of Clause (iii) of the explanation to Section 22(5), the petitioner is entitled to seek deduction from the tax assessed under sub-section (4) of Section 22 of tax paid on any such turnover on which, tax is paid at a concessional rate, if requisite declarations are furnished, before levy of penalty. The impugned show cause notice being both premeditated and/or premature, is required to be set aside - appeal allowed - decided in favor of appellant. - Writ Petition No. 35620 of 2016 and WMP No. 30613 of 2016 - - - Dated:- 4-1-2017 - Rajiv Shakdher, J. For the Petitioner : Mr.T.V.Lakshman For the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... %. 2.3. In addition thereto, the impugned notice shows that there is a proposal to levy the penalty at the rate of 150%, in exercise power under Section 22(5) of the 2006 Act, on the difference of tax due and that, which is paid, as per the return filed by the petitioner. 2.4. The impugned notice, however, gives fifteen (15) days time to the petitioner to file its objections. 2.5. The petitioner, being aggrieved by the issuance of the impugned notice, has filed the instant petition. 3. Notice in the instant petition was issued on 06.10.2016, on which date, on behalf of the respondents, the learned Government Pleader, who appeared in the matter, sought time to obtain instructions. Thereafter, the matter has been adjourned on two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty is premature and contrary to the statutory scheme. 6. Mr.S.Kanmani Annamalai, on the other hand, says that the captioned petition is not sustainable, in view of the fact that opportunity is given to the petitioner to challenge the proposal made in the notice. 6.1. It is submitted that the contentions raised before the Court can be articulated by the respondent, who would, then, pass an order after considering the objections of the petitioner. 7. I have heard the learned counsels for the parties and perused the record. 8. The brief facts, which are necessary for adjudication upon the petition, have been recorded by me hereinabove. These facts are not disputed. There are the facts, which are, gleaned from the impugned notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w : 22. Deemed Assessment and procedure to be followed by the assessing authority.- (1) ...... (2) ...... (3) ...... (4) If no return is submitted by the dealer for any period of the year or if the return filed is in complete or incorrect, or if not accompanied with any of the documents prescribed or proof of payments of tax, the assessing authority shall, after making such enquiries as it may consider necessary, assess the dealer to the best of its judgment, subject to such conditions as may be prescribed, after the completion of that year: Provided that before taking action under this sub-section, the dealer shall be given a reasonable opportunity of being heard. (5) In addition to the tax assessed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, either be imposed at the time when, the assessment order is passed, or, by way of a separate order, albeit, after the assessment order is passed. Therefore, the proposal in the show cause notice to levy penalty at the rate of 150% prior to adjudication demonstrates premeditation. 10. Furthermore, as has been correctly argued by the learned counsel for the petitioner, as per the provisions of Clause (iii) of the explanation to Section 22(5), the petitioner is entitled to seek deduction from the tax assessed under sub-section (4) of Section 22 of tax paid on any such turnover on which, tax is paid at a concessional rate, if requisite declarations are furnished, before levy of penalty. 11. Having regard to the aforesaid provisions, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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