TMI Blog2018 (5) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... ears from the expiry of the year to which the assessment relates. The finding and reasoning of the Tribunal affirming the order of the Appellate Assistant Commissioner that there was no willfulness attributable to the dealer and therefore penalty under Section 16(2) of the Act is not leviable, does not warrant any interference. Tax case revision petition dismissed. - Tax Case No. 96 of 2018 - - - Dated:- 9-4-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Petitioner : Mr. V. Hari Babu ORDER ( Order of the Court was made by S. Manikumar, J ) Instant Tax Case (Revision) is filed by the Revenue as against the order of the Sales Tax Appellate Tribunal dated 29.11.2002 made in C.T.S.A.No.9 of 2001, on the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner with regard to the assessment made, the tribunal, vide common order dated 29.11.2002, held as follows: 24. However, in the instant cases above mentioned, the learned Authorised Representative failed to produce the connected sale invoices and the related materials such as price list, sales register bifurcating proper sale price and the amount of tax element etc., for our perusal to ascertain the fact that what was collected as per the bills by the appellants represent not merely the price of the goods but also the tax payable on the sale and the quantum of tax payable. On further perusal of the assessment records, we could find only the bills relating to second sale items of goods (no tax bill) filed in the asst. re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department to be taxable was very much available in the assessee's own books and the accounts in full shape, were also produced before the Assessing Authority at the time of assessment adopting the very same amounts as shown in the assessee's books and which were considered to be non-taxable at the time of initial assessment. Hence the Assessing Officer cannot create a penalisation under section 16(2) of the Act. Just because an assessment was created on the turnover impugned, it will not mean that the element of 'wilfulness' was attributable thereon attracting a penalisation u/s.16(2) of the TNGST Act. The would also contend that the imposition of penalty during all the years of assessments was time barred and that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at : Under the proviso to sub-section (5) of Section 12 of the Tamil Nadu General Sales Tax Act,1959 penalty cannot be imposed after the period of five years from the expiry of the year to which the assessment relates . Further, it has been held as follows: Under proviso to sub-section (5) of Section 12 of the Act, penalty cannot be imposed after the period of five years from the expiry of the order to which the assessment relates. There is no dispute in this case that the assessment year in question is 1972-73. The penalty has been imposed by an order dated September 30, 1982. Though the relevant section underwent a change in 1979, we are not concerned with that. As the section stood during the assessment year in question 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also warranted in this case. (ii) The tribunal failed to note that the case law relied on by the first appellate authority and reported in 92 STC 112 for deletion of penalty levied under Section 16(2) of the TNGST Act, 1959 has no relevance to the case on hand. (iii) The tribunal failed to note that the first appellate authority had sustained the revision of assessments made, but erred in deleting the penalty levied under Sec. 16(2) which is bad in law. 8. Heard the learned Additional Government Pleader (Taxes) and perused the materials available on records. 9. A reading of the order of the Tribunal shows that, insofar as levy of penalty is concerned, the finding and reasoning of the Tribunal affirming the order of the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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