TMI Blog2018 (4) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... 934.13 respectively. During the check of accounts, the Assessing Officer has found certain stock discrepancy and closing stock in the Trading and Profit account for the year ending 31.03.1995. Hence, the Assessing Officer assessed the dealer on taxable turnover of ₹ 57,55,528/- for the year 1994-95, under Tamil Nadu General Sales Tax Act, 1959, and also levied penalty of ₹ 15,604/- under Section 12(3) of the Act. 3. Aggrieved over the assessment, the dealer, filed an appeal before the Appellate Assistant Commissioner (CT)-II, Chennai, disputing the turnover of ₹ 57,55,528/- and levy of penalty of ₹ 15,604/-, under Section 12(3)(b) of the Act. The Appellate Assistant Commissioner, vide order, dated 29.01.2003, dismissed the appeal, as follows: 4. I have heard the arguments of Authorized Representative and Departmental Representative and perused the connected records. At the time of hearing, the Authorised Representative has reiterated the points raised in the grounds of appeal. The Departmental Representative who appeared on behalf of the Revenue has stated that the appellants have already arrived at the stock difference on the basis of the inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the stock discrepancy. Even though the appellants stated that in the reconciliation statement of the inspecting officer that the stock found ₹ 37,106/- pertains to the second sales of the goods on which the tax had already been suffered. But on perusal of records on the reconciliation statement there is no such fact found out in such circumstances the efforts of appellant ends in vain. Regarding the application of G.O.Ms.200 there is no material found in the records that the stock difference available at the time of inspection is below 2% when, compared to the actual stock available at that time. There is no force in the arguments of the appellant regarding the difference of turnover of ₹ 10,470/-. So we feel that there is no error in sustaining the turnover assessed by the Assessing Officer and also there is no error in sustaining the equal time addition also. Regarding the 12(3)(b) penalty, it is found that all the figures were taken from the appellants books of accounts, so there is no omission on the part of the appellants. In such condition the levy of penalty will not arise under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959. So, we hereby ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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, at page 701, after extracting Section 12 (2) of the Tamil Nadu General Sales Tax Act, 1959, which remains in the same form even now, observed thus:- The question is whether penalty can be levied while making the assessment under sub-Section (2) of the above Section merely because an incorrect return has been filed. The High Court was of the view that it is only if the assessment has to be made to the best of the judgment of the assessing authority that penalty can be levied. It seems to us that the High Court came to the correct conclusion because sub-sections (2) and (3) have to be read together. Sub-Section (2) empowers the assessing authority to assess the dealer to the best of its judgment in two events: (i). if no return has been submitted by the dealer un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue 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. The Explanation to section 12(3)(b) of the Act specifies the turnover which merited to be excluded for the purpose of levy of penalty, one such being the turnover representing addition related to book turnover itself. Thus, even while calculating the turnover for the purpose of levy of penalty, the turnover, which are already available in the books of accounts are to be excluded and only those turnover which are estimated having reference to a specific concealment alone, the purpose of addition, invite the penal provisions under the Tamil Nadu General Sales Tax Act, 1959. In the decision reported in [2002] 125 STC 505 (Mad) (Appollo Saline Pharmaceuticals (P) Limited v. Commercial Tax Officer (FAC)) this court pointed out that when the assessment is based on the accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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