TMI Blog2017 (4) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... For Respondents : Mr. S. Kanmani Annamalai ORDER 1. This is a writ petition, which is directed against the order dated 31.12.2013. 1.1. By virtue of the impugned order, the petitioner has been called upon to pay penalty in the sum of ₹ 37,032/-. 2. The petitioner submits that, apart from anything else, the impugned order is unsustainable in law, in view of the fact that penalty order has been passed, independent of the assessment order. 2.1. To be noted, the assessment order was passed on 31.07.2013. 3. In order to adjudicate upon the issue raised in the captioned writ petition, the following facts are required to be noticed : 3.1. The petitioner, who is a dealer in finished leather and is registered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner had not availed of ITC. 4. The record shows that, thereafter, another notice dated 25.03.2013 was issued to the petitioner, whereby, the respondent chose to add a sum of ₹ 6,17,205/- as escaped taxable turnover towards shortage and damaged goods, i.e., finished leather. 4.1. According to the respondent, since, the number of such pieces were 1,789 in number, and the value of each piece would be ₹ 345/-, the turnover, which had escaped tax assessment would be, the figure given above, i.e., ₹ 6,17,205/-. 4.2. In response to the said notice, the petitioner addressed a communication dated 09.07.2013, wherein, it was indicated that tax in the sum of ₹ 32,165/- had been paid in response to the earlier notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the learned counsel for the petitioner that, since, the assessment order did not advert to any of these aspects, the penalty order cannot be sustained. 7.1. For this purpose, learned counsel for the petitioner relies upon the following judgements of this Court : (i).The Deputy Commissioner (C.T.), Coimbatore V. S.R.Ramaswami Chettiar and Bros., [1976] 38 S.T.C. 382; and (ii).Rainbow Foundations Ltd., V. Assistant Commissioner (CT), [2011] 37 V.S.T. 592 (Mad.). 8. Mr.Annamalai, who appears for the respondent, says that, since, there was escapement of tax, which was taken note of in the order revising tax, penalty imposed is an order, notwithstanding the fact that this aspect did not form part of the revised assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is also extracted hereinbelow, for the sake of convenience : 16 (2). In making an assessment under clause (a) of sub-section (1), the assessing authority may, if it is satisfied that the escape from the assessment is due to willful non-disclosure of assessable turnover by the dealer, direct the dealer, to pay, in addition to the tax assessed under clause (a) of sub-section (1), by way of penalty a sum which shall be (a) fifty per cent of the tax due on the turnover that was willfully not disclosed if the tax due on such turnover is not more than ten per cent of the tax paid as per the return; (b) one hundred per cent of the tax due on the turnover that was willfully not disclosed if the tax due on such turnover is more than ten per cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases falling under Section 16(2) unless there is a definite finding as to the wilful non-disclosure of taxable turnover, the assessing officer will have no jurisdiction to impose the penalty. Except for this difference, we do not find any other difference between Section 12(3), as it stood at the relevant period, and Section 16(2). As we have already seen, this court in State of Madras Vs. Ramulu Naidu, [1965] 16 S.T.C. 865 held that the levy of penalty should form part of the assessment order itself. Thus, no separate order is also contemplated under Section 16(2). Thiru S.V. Subramaniam, whom we required to argue the case in the absence of the respondent brought to our notice Section 31 relating to the appeal to the Appellate Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are, therefore, of the opinion that the Tribunal was right in holding that no separate order of penalty could be made under Section 16(2). ..... (emphasis is mine) 10.2. Similar observations are made by a Single Judge of this Court in Rainbow Foundations Ltd., V. Assistant Commissioner (CT), [2011] 37 V.S.T. 592 (Mad.), which followed the aforementioned judgment of the Division Bench : ..... The decision of this Court in Deputy Commissioner (C.T.), Coimbatore V. V.S.R. Ramaswami Chettiar and Bros. reported in [1976] 38 STC 382, clearly holds that under section 16(2) of the Act, the assessing authority has no jurisdiction to impose penalty by a separate and independent order. Even if a statute has brought in a new section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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