TMI Blog2018 (4) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... 11,00,405/- respectively. During the check of accounts, the Assessing Officer has found that the assessee has not shown any purchases and closing stock in the Trading and Profit account for the year ending 31.03.1997. But actually there was a purchase of ₹ 9,81,113/-. This was not brought to profit and loss accounts. The assessee also effected sale of machinery to the tune of ₹ 4,72,000/- which was also not reflected in the profit and loss accounts. Hence, the Assessing Officer assessed the dealer on total and taxable turnover of ₹ 25,52,134/- and ₹ 20,80,134/- respectively, for the year 1996-97, under Tamil Nadu General Sales Tax Act, 1959, and also levied penalty of ₹ 1,32,252/- under Section 12(3) of the Act. 3. Aggrieved over the assessment, the dealer, filed an appeal before the Appellate Assistant Commissioner (CT), Kancheepuram, disputing the turnover of ₹ 9,79,729/- at 11 % and levy of penalty of ₹ 1,32,252/-, under Section 12(3)(b) of the Act. The Appellate Assistant Commissioner, vide order, dated 15.03.2001, dismissed the appeal, as follows: 5. The point for determination in this appeal is whether the assessment made is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regarding levy of penalty but for critical check by the Assessing Officer, the purchase omission would not have been brought to light and the correspondence sale of such manufactured goods would have been suppressed. Therefore there is concealment of turnover as discussed above and it definitely calls for levy of penalty. I therefore sustain the penalty of ₹ 1,32,252/- as levied under Section 12(3)(b) of the Act by the Assessing Officer. In the result, the appeal fails and is dismissed. 4. Being aggrieved, the dealer has preferred T.A.No.718 of 2001, disputing the sustaining of penalty of ₹ 1,32,252/-, under Section 12 (3) (b) of the Tamil Nadu General Sales Tax Act, 1959, for the year 1996 97, under the Tamil Nadu General Sales Tax Act, 1959, against the order of the Appellate Assistant Commissioner (CT) Kancheepuram, in A.P.No.126 of 1999, dated 15.03.2001. Vide Order, dated 24.01.2002, the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai, modified the order of the Appellate Assistant Commissioner (CT) Kancheepuram, as hereunder: 7. We have examined the contentions of both sides and perused the connected records. 8. The main dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be 31% if manufacturing expenses are considered. Actually, the Assessing Officer has taken only the opening stock and the sale to decide the Gross profit. So, we order to adopt only 20% to arrive at the probable sale value. If 20% is adopted, the turnover will be fixed as below: Net purchase value as adopted by the Assessing Officer Rs.21,04,815/- Add: 2% Gross Profit ₹ 4,20,963/- Rs.25,25,778/- Deduct: Inter-State Sales ₹ 6,56,125/- Rs.18,69,653/- So the taxable turnover is re-fixed at Rs.18,69,653/- 9. PENALTY: The Appellate Assistant Commissioner has made an observation but for the critical check by the Assessing Officer this omission would not have been found. But we find that all the figures are available in the books of accounts. The estimation of sales turnover was done only based on the book purchase turnover. There is no purchase or sales omission found out by the Assessing Officer. As c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following kinds of turnover shall be deducted from the tax assessed on final assessment, (i) twenty-five per cent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by not more than five per cent; (i-a) fifty per cent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by more than five per cent but not more than fifteen per cent; (ii) seventy-five per cent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by more than fifteen per cent but not more than twenty-five per cent; 10. In Appollo Saline Pharmaceuticals (P) Ltd., Vs. Commercial Tax Officer (FAC) and Others, reported in {(2002) 125 STC 505}, considering a decision of the Hon'ble Supreme Court in State of Madras Vs. Jayaraj Nadar Sons {(1971) 28 STC 700, at paras 5 to 7, held as follows:- 5. The Supreme Court in the case of State of Madras Vs. Jayaraj Nadar Sons {(1971) 28 STC 700 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in case where the assessment is a best judgment assessment made on an estimate and not by relying solely on the accounts furnished by the assessee in the prescribed return. On and after April 1, 1996 an explanation has been added below Section 12 (3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under Section 12 (3). 11. In Indira Industries Vs. State of Tamil Nadu, reported in {2014 (69) VST 139 (Mad.), this Court considered a question, as to whether, levy of penalty under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959, was justifiable, particularly, when there was no suppression pointed out by the Revenue that the Claim of the assessee related only to concessional rate of tax. This Court held as follows: 8. .......Thus when the turnover assessed under the assessment order is drawn from the books of accounts itself, and there being no reference to any specific concealment of the turnover in the accounts, the question of invoking section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 would not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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