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TMI Blog2018 (5) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... South Assessment Circle vide TNGST Revision Order No.655152 dated 29.09.1995 (for the year 1988-89) determined a taxable turnover of Rs. 1,49,754/- and penalty of Rs. 6,785/- under Section 16(2) of the Act; in the Revision Order dated 29.09.1995, (for the year 1989-90) determined a turnover of Rs. 1,51,448/- and a penalty of Rs. 6,699/-; in the revision order dated 30.04.1996 (for the year 1990-91) determined turnover of Rs. 2,23,864/- and a penalty of Rs. 11,317/- and in the revision order dated 06.01.1998 (for the year 1991-92) determined a turnover of Rs. 2,84,547/- and a penalty of Rs. 40,704/-. 3. Aggrieved over the above assessment orders, the respondent/dealer filed appeals before the Appellate Assistant Commissioner (CT), Salem, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill is 'inclusive of tax'. Therefore, considering the facts and circumstances of the case and in the absence of any material evidences produced by the appellants concerned, we see no other alternative but to confirm the assessment so made by the Assessing Authority." 6. Insofar as the levy of penalty is concerned, the Tribunal concurred with the view of the Appellate Assistant Commissioner that there was no justification in penalising the assessee, as the turnover in question was based on assessee's books of accounts and that there was no element of willful non-disclosure of turnover. Placing reliance on the decision reported in 91 STC 112 (P.Subba Reddy V. State of Tamil Nadu) and 104 STC 61 and 94 STC 120, the Tribunal held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Assistant Commissioner has rightly observed that the Assessing Officer would derive the turnover for assessment from out of the assessee's own books of accounts and the very same turnover was available in the books even at the time of original assessment and any attribution of wilful non-disclosure of the turnovers from their getting taxed under the Act, shall not be possible. Hence, the penalisation created u/s. 16(2) of the TNGST Act is to be held as illegal. Thus, the learned Appellate Assistant Commissioner has set aside the penalty so levied relying on the case laws reported in 104 STC 61 (Madras) and 94 STC 120, wherein, it was held that where the assessed turnover was found in the assessee's books of accounts, penalty can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment which came into force on December 1, 1972, could be made applicable for the assessment year 1972-73, we are not expressing any opinion on this question because we propose to dispose of this tax revision case on the ground that no penalty has been imposed within the period of five years ending assessment year 1972-73". 28. Therefore under the given facts and circumstances of the case, the order passed by the first appellate authority in setting aside the penalty is found to be in order and hence it calls for no interference." 7. Being aggrieved State has preferred the instant Tax Case (Revision), raising the following grounds (i) The Tribunal failed to note that the Assessing Officer restored to revision of assessment for the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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