TMI Blog2017 (9) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... er and that, but for audit, the matter would not have come to light. What is required to be examined is whether the conduct of the assessee was wilful - In the case on hand, except alleging that there has been wilful non-disclosure of assessable turnover, there is nothing on record to show that the petitioner had deliberately acted with an intention to avoid payment of tax. In fact, all the materials have been gathered from the monthly returns filed by the petitioner and there is no other allegation to show that the petitioner had wilfully suppressed the turnover or refused to pay tax an intentionally avoided payment of tax. In such circumstances, the question of levy of penalty on the petitioner for the assessment years 2012-2013 & 2015-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has paid the entire tax liability. Thus, the short question to be considered is whether these are cases where the respondent could have levied penalty under Section 27(3) of TNVAT Act, 2006. 5. One glaring error which requires to be pointed out is that in the impugned assessment order dated 20.07.2017 for the assessment year 2012-2013, the respondent has stated that the assessment has been finalised as deemed assessment under Section 22 of TNVAT Act, 2006. In the assessment order, while dealing with penalty, the respondent has pointed out that the petitioner is a registered dealer only with effect from November, 2013. If the petitioner was not a registered dealer before November, 2013, then, obviously, the petitioner could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the petitioner and that, but for audit, the matter would not have come to light. What is required to be examined is whether the conduct of the assessee was wilful. At this stage, it will be beneficial to refer to the relevant portions of the said decision at paragraph Nos. 72, 73 74 and they are as hereunder: 72. Section 27(3) of the Act states that in making an assessment under clause (a) of sub-section (3) of section 27 of the TNVAT Act (as in the present case) the assessing authority may, if it is satisfied that the escape from assessment is due to wilful non-disclosure of assessable turnover by the dealer, direct the dealer, to pay, in addition to the tax assessed under clause (a) of section 27(1) by way of penalty, which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons as to the imposition of penalty on the entire demand, which essentially should have been done by the assessing officer. 73. .....However, the assessing officer did not examine this aspect and merely quoted the expression used in Section 27(3), viz., wilful non-disclosure . Mere use of expression wilful does not make an act or action wilful or deliberate. It is a question of fact to be proved by the person who makes an allegation against another for having acted in a wilfully negligent manner of deliberately aced with mala fide with an intention not to comply with the statutory provisions. This exercise was not done by the assessing officer. Allegations of mala fide are often more easily made than proved and the burden is on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes Pvt.Ltd in Tax Case Revision Petition No. 24 of 2016, the Division Bench of this Court considered as to what would be the requirement that has to be fulfilled for levying penalty under Section 27(3) of the TNVAT Act, 2006 and the relevant portion at paragraph No.13 reads as follows: 13. It is not in dispute that Sub-section (3) of Section 27 of the Act has in turn provided for imposition of penalty charges at the rate of 50%, 100% and 150% of the tax due, on such turnover, which has escaped the assessment earlier, depending upon the frequency of delinquency of the dealer. Sub-section (3) of Section 27 of the Act clearly required the Assessing Officer to be satisfied that the escape from the assessment is due to wilful non-disclosur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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